i ) 







SOME ACCOUNT 



LIFE, WRITINGS, AND SPEECHES 



WILLIAM PINKNEY. 



BY HENRY WHEATON, 



•■^ 



Ardebat cupiditate tic, ut in nullo unquam flag^rantius studium viderim, Erat in ver- 
borum spleodore elegans, compositione aptus, facultate copiosus: io dissereodo mira expli- 
catio : cum de jure civili, cum de aequo et bono disputaretur, argumentorum et sirailitudi- 
num copia. Cic. Brutus. 



NEW-YORK: 

PUBLISHED BY E. BLISS & E. WHITE. 
1826. 



.f. jr. Palmer Sr Co. Print. 






Southern District of JVew- York, ss. 

BK IT HE\1 KMBEREU, that on the 28th day of April, A. D. 1826, in the 
50th year of the /Independence of the United Stales of America, Henry 
Wheaton, of the ^aid Distriti, hath deposited in this offict- the title of a book, 
the right whereof he claims as proprietor, in the words following, to wit ; 

" Some Account of the Life Writings, and Speeches of William Pinkney." 
Bv Henry Wheaton Ardebat cupiditate sic, ut in nuUo unquani flagran- 
tius studium viderim. Erat in verboiuni splendore elegans, compositione 
aptus, lacultate copiosus ; in disserendo mira explicatio : cum de jure civili, 
cum de ffiquo ct bono disputaretur, argumentorum et simililudinum copia." 

In conformity to the Act of Congress ol the United States, entitled " An 
Act for the encouragement of Learning, by securing the copies of Maps, 
Charts, and Books, to the authors and proprietors of such copies during the 
time therein mentioned." And also to ^n Act, entitled '* An Act supplemen- 
tary to »n Act, entitled an Act for the encouragement of Learning, by se- 
curing the copit -■ of Maps, Charts, and Books, to the authors and proprietors 
of such copies, during the times therein mentioned, and extending the bene- 
fits thereof to the arts of designing, engraving, and etching historical and 
other prints." 

JAMES DHL, 
Clerk of the Southern District of JVew- York. 



CONTENTS 



PART FIRST. 

Page 
Memoir; Private Correspondence, &c 5 

PART SECOIVD. 

No. I. — Opinions delivered at the Board of Commissioners, under the 
7th Article of the Treaty of 1794, between the United States 

and Great Britain 193 

No. II.— Memorial on the Rule of the War of 1756 372 

No. HI. — Private Correspondence with Mr. Madison 397 

No. IV. — Speech in the Case of the Nereide 465 

No. V. — Speech in the House of Representatives on the Treaty-Making 

Power 517 

No. VI. — Argument on the Right of the States to tax the National 

Bank ; 55Q 

No. VII. — Speech on the Missouri Question 573 

No. VIII. — Opinion in the Case of Cohens against the State of Vir- 
ginia 612 



ERFATA. 

Page 113, 1 7 — for " matters," read masters. 

1. 15 — for " unto,' read into. 
Page 131, 1. 29— for " our," read an. 

DIRECTION TO THE BINDER. 

Portrait lo face title-page. 
Fac-simile to face Part II, page 193. 



SOME ACCOUNT 

OF THE 

LIFE, WRITINGS, AND SPEECHES 

OF 

WILLIAM PINKNEY. 



PART FIRST. 



William Pinkney was born at Annapolis, in 
Maryland, on the 17th of March, 1764. His 
father was a native of England, and adhered' 
to the cause of the parent - untry, in our strug- 
gle for independence, whilst the son avowed, 
even in early youth, his ardent attachment to 
the liberties of America. His early education 
was imperfect, but probably as good as could 
be obtained in this country during the war of 
the revolution. He was initiated in classical 
studies by a private teacher of the name of Brat- 
haud, who took great pains in instructing him, 
and of whom he always spoke with the warmest 
affection and gratitude. He commenced the 
study of medicine, but soon found that he had 

2 



[6] 

mistaken his vocation, and resorted to that of the 
law under the late Mr. Justice Chace, then an 
eminent practitioner at the bar of Maryland. 
That province had been distinguished among the 
colonies by a succession of learned and accom- 
plished lawyers. With such a guide and in such 
a school, his studies were of no superficial kind. 
He commenced his law studies in February, 
1783, and was called to the bar in 1786. His 
very first efforts seem to have given him a com- 
manding attitude in the eye of the public. His 
attainments in the law of real property and the 
science of special pleading, then the two great 
foundations of legal distinction, were accurate 
and profound ; and he had disciplined his mind 
by the cultivation of that species of logic, which, 
if it does not lead to the brilliant results of in- 
ductive philosophy, contributes essentially to in- 
vigorate the reasoning faculty, and to enable it 
to detect those fallacies which are apt to impose 
upon the understanding in the warmth and hurry 
of forensic discussion. His style in speaking was 
marked by an easy flow of natural eloquence and 
a happy choice of language. His voice was very 
melodious, and seemed a most winning accom- 
paniment to his pure and effective diction. His 
elocution was calm and placid — the very contrast 
of that strenuous, vehement, and emphatic man- 
ner, which he subsequently adopted. 

He removed to Harford county in 1 786, for the 
purpose of pursuing the practice of his profes- 
sion, and in April, 1 788, was elected a delegate 
from that county to the Convention of the State 



[ 7 ] 
of Maryland which ratified the constitution of the 
United States. But I have not been able to find 
any traces of the part he took in the delibera- 
tions of that body ; and, in general, I have to re- 
gret that my endeavours to discover those distinc- 
tive traits of his earlier life, which mark the 
development of youthful character and talent, 
and which constitute one of the most pleasing 
portions of biography, have not been attended 
with success. 

Mr. Pihkney was elected in October, 1788, as 
a representative to the House of Delegates of 
Maryland from the county of Harford, which he 
continued to represent until the year 1792, then " 
he removed to Annapolis. 

In 1789, he was married, at Havre de Grace, tO/ 
Miss Ann Maria Rodgers, daughter of John 
Rodgers, Esq. of that town, and sister to that 
distinguished officer. Commodore Rodgers, of the 
navy. 

In 1790, he was elected a member of Congress, 
and his election was contested upon the ground 
that he did not reside in the District for which he 
was chosen, as required by the law of the State. 
But he was declared duly elected, and returned 
accordingly, by the Executive Council, upon the 
principle that the State Legislature had no autho- 
rity to require other qualifications than those enu- 
merated in the constitution of the United States ; 
and that the power of regulating the times, places, 
and manner of holding the elections, did not in- 
clude that of superinducing the additional quali- 
fication of residence within the District for which 



[ 8 ] 
the candidate was chosen. He made on the 
occasion, what was considered, a very powerful 
argument in support of his own claim to be re- 
turned ; but declined on account of his profes- 
sional pursuits, and the state of his private affairs, 
to accept the honour which had been conferred 
upon him. 

At the first Session of the Legislature of Ma- 
ryland after his election as a member of the 
House of Delegates in 1788, he made a speech 
upon the report of a committee appointed to 
consider the laws of that State, prohibiting the 
voluntary emancipation of slaves, which breathes 
all the fire of youth and a generous enthusiasm 
for the rights of human nature, although it may 
not perhaps be thought to give any pledge of 
those great powers of eloquence and reasoning 
which he afterwards displayed.* At the subse- 
quent Session in 1789, he delivered the following 
speech on the same subject, which, as he himself 
said in a letter to a friend written at the time 
when his consistency was impeached for the part 
he took in the Missouri question, is " much bet- 
ter than the first speech, and for a young man is 
well enough." 

" Mr. Speaker — As I have formerly had the honour of giving 
my sentiments to the House of Delegates, on the measures now un- 
der their consideration, and the mortification too of seeing those 
sentiments disregarded, I should hardly think of lending them 
again the aid of my feeble exertions, if I was not too thoroughly 
persuaded of their importance, to imagine I had done my duty 
by giving them my approbation in silence. 

* A part of this speech will be found in Carev't Museum, vol. vi. p. 74. 



[9] 

" That I have every possible reason to be discouraged from 
the prosecution of regulations of this sort, it would be folly in 
me to doubt ; for I have more than once been sorry to find, that 
in a country which has set even distant Europe in a ferment, and 
lavished the blood of thousands in defence of its liberties, against 
the encroachments of an arrogant and abandoned govern- 
ment, the cause of freedom was yet the most unpopular in which 
an advocate could appear. The alarms occasioned by mistaken 
ideas of interest, the deep-rooted prejudices which education has 
fostered and habit matured, the general hereditary contempt for 
those who are the objects of these provisions, the common dread 
of innovation, and, above all, a recent defeat, are obstacles 
which would seem sufficient to damp, if not entirely extinguish, 
the ardour of exertion. 

" But with me these difficulties only serve to rouse every fa- 
culty of mind and body, which the occasion demands, and to call 
forth that spirit of perseverance, which no opposition can sub- 
due, but that which affords me conviction of my error. 

" Sir — In my judgment, this is no common cause. If ever 
there were cases which demanded parliamentary interference, 
such are now before you. For the honour of human nature, for 
the sake of justice, from a respect to the interest of the commu- 
nity, they ought to receive the peculiar attention, the impartial, 
deliberate decision of the legislature. 

" But, while the illusions of pride and selfishness, or the 
clouds of early ill-founded opinions, blind us to the truth : 
while we continue to be fettered by the clogs of predetermination, 
and obstinate, unbending prejudice ; while we struggle to resist 
the force of argument, and wilfully stifle conviction in the birth, 
we can at best pretend to no more than the mere mockery of in- 
vestigation. 

" From this body, however, I presume this report will meet a 
better fate. They will weigh it as its importance merits ; they 
will trace it through every labyrinth of its consequences ; and 
while they guard the public welfare from the danger of ill-judged 
innovation, they will not forget that something is due to humani- 
ty, and the great principles of moral justice. Under this im- 
pression I shall once more venture to give my sentiments at 
large upon the propositions of the committee ; and I call upon 



[10] 

fhose who differ from me, to watch every assertion and every 
argument I advance, and if they can refute the one, or contra- 
dict the other, I yield the point for ever. 

" I shall not detain you, Sir, with any observations on those 
parts of the report which prohibit the fraudulent, or compulsory 
exportation of free blacks or mulattoes, or the exportation of 
slaves to the West India islands, &c. nor on that clause which 
recommends the remission of the penalties heretofore inflicted on 
certain offspring for the mere offence of the parents. 

" Who doubts on these points now, will, in all likelihood, 
doubt for ever. 

" I consider them as too evidently proper to need illustration. 
But there is another part of the report, which gentlemen either 
do, or affect to think less clear and obvious. This must be con- 
sidered, because to be acceded to, it only requires to be under- 
stood. 

*' You are called upon to say, Sir, whether the owner of a 
slave shall be permitted to give him his liberty by a mode of 
conveyance which he may effectually use (and at a time when it 
is clearly lawful for him) to transfer the property of that slave 
to another. 

" By an existing law no slave can be manumitted by his mas- 
ter during his last sickness, or at any time by last will and testa- 
ment; that is when liberty (the great birthright of every human 
creature) is to be restored to its plundered proprietor, you must 
be careful to make the restitution at a particular time, and in one 
specified manner, or your generous intentions shall be frustrated ; 
but if you are desirous of passing any worthless goods and chat- 
tels, you may perfect the transfer at any time, and almost in 
any way. 

" The door to freedom is fenced about with such barbarous 
caution, that a stranger would be naturally led to believe that our 
statesmen considered the existence of its opposite among us as 
the sine qua non of our prosperity ; or, at least, that they regarded 
it as an act of the most atrocious criminality to raise an hum- 
ble bondsman from the dust, and place him on the stage of life 
on a level with their citizens. 

'' To discover the grounds of their conduct would surely be no 
easy task ; to show that, let them be what they may, an enlighten- 



[ " \ 

ed legislature should blush to own them, a school boy would have 
sufficient ability. 

" Sir, iniquitous, and most dishonourable to Maryland, is that 
dreary system of partial bondage, which her laws have hitherto 
supported with a solicitude worthy of a better object, and her 
citizens by their practice countenanced. 

" Founded in a disgraceful traffic, to which the parent country 
lent her fostering aid, from motives of interest, but which even 
she would have disdained to encourage, had England been the 
destined mart of such inhuman merchandise, its continuance is 
as shameful as its origin. 

" Eternal infamy await the abandoned miscreants, whose self- 
ish souls could ever prompt them to rob unhappy Afric of her 
sons, and freight them hither by thousands, to poison the fair Eden 
of liberty with the rank weed of individual bondage ! Nor is it 
more to the credit of our ancestors, that they did not command 
these savage spoilers to bear their hateful cargo to another shore, 
where the shrine of freedom knew no votaries, and every pur- 
chaser would at once be both a master and a slave. 

" In the dawn of time, when the rough feelings of barbarism 
had not experienced the softening touches of refinement, such an 
unprincipled prostration of the inherent rights of human nature 
would have needed the gloss of an apology ; but to the everlast- 
ing reproach of Maryland be it said, that when her citizens ri- 
valled the nation from whence they emigrated, in the knowledge 
of moral principles, and an enthusiasm in the cause of general 
freedom, they stooped to become the purchasers of their fellow- 
creatures, and to introduce an hereditary bondage in the bosom 
of their country, which should widen with every successive 
generation. 

" For my own part, I would willingly draw the veil of obli- 
vion over this disgusting scene^^f iniquity, but that the present 
abject state of those who are descended from these kidnapped 
sufferers, perpetually brinns it forward to the memory. 

" But wherefore should we confine the edge of censure tp our 
ancestors, or those from whom they purchased ? Are not we 
equally guilty ? They strewed around the seeds of slavery ; we 
cherish and sustain the growth. They introduced the system ; 
we enlarge, invigorate, and confirm it. Yes, let it be handed 
down to posterity, that the people of Maryland, who could fly 



[ 12 ] 

to arms with the promptitude of Roman citizens^ when the hand 
of oppression was lifted up against themselves ; who could be- 
hold their country desolated and their citizens slaughtered ; who 
could brave with unshaken firmness every calamity of war be- 
fore they would submit to the smallest infringement of their 
rights — that this very people could yet see thousands of their fel- 
low-creatures, within the limits of their territory, bending be- 
neath an unnatural yoke ; and, instead of being assidi;ous to de- 
stroy their shackles, anxious to immortalize their duration, so 
that a nation of slaves might for ever exist in a country where 
freedom is its boast. 

" Sir, it is really matter of astonishment to me, that the people 
of Maryland do not blush at the very name of Freedom. I ad- 
mire that modesty does not keep them silent in her cause. That 
they who have, by the deliberate acts of their legislature, treated 
her most obvious dictates with contempt ; who have exhibited, 
for a long series of years, a spectacle of slavery which they still 
are solicitous to perpetuate ; who, not content with exposing to 
the world for near a century, a speaking picture of abominable 
oppression, are still ingenious to prevent the hand of generosity 
from robbing it of half its horrors ; that they should step for- 
ward as the zealous partizans of freedom, cannot but astonish a 
person who is not casuist enough to reconcile antipathies. 

" For shame, Sir ! let us throw off the mask, 'tis a cobweb one 
at best, and the world will see through it. It will not do thus to 
talk like philosophers, and act like unrelenting tyrants ; to be per- 
petually sermonizing it with liberty for our text, and actual op- 
pression for our commentary. 

" But, Sir, is it impossible that this body should feel for the re- 
putation of Maryland ? Is national honour unworthy of consi- 
deration ? Is the censure of an enlightened universe insufficient to 
alarm us? It may proceed fro^ the ardour of youth perhaps, 
but the character of my country among the nations of the world 
is as dear to me as that country itself. What a motley appear- 
anccL must Maryland at this moment make in the eyes of those 
who view her with deliberation ! Is she not at once the fair 
temple of freedom, and the abominable nursery of slaves ; the 
school for patriots, and the foster-mother of petty despots ; the 
assertor of human rights, and the patron of wanton oppression ? 
Here have emigrants from a land of tyranny found an asylum 



[ 13 ] 

IVom persecution, and here also have those who came as right- 
fully free as the winds of heaven, found an eternal grave for the 
liberties of themselves and their posterity ! 

" In the name of God, should we not attempt to wipe away this 
stigma, as far as the impressions of the times will allow? If we 
dare not strain legislative authority so as to root up the evil at 
once, let us do all we dare, and lop the exuberance of its 
branches.' • I would sooner temporize than do nothing. At least 
we should show our wishes by it. 

" But lest character should have no more than its usual weight 
with us, let us examine into the policy of thus perpetuating slave- 
ry among us, and also consider this regulation in particular, with 
the objections applicable to each. That the result will be fa- 
vourable to us I have no doubt. 

" That the dangerous consequences of this system of bondage 
have not as yet been felt, does not prove they never will be. At 
least the experiment has not been sufficiently made to preclude 
speculation and conjecture. To me, Sir, nothing for which I 
have not the evidence of my senses is more clear, than that it 
will one day destroy that reverence for liberty which is the vital 
principle of a republic. 

" While a majority of your citizens are accustomed to rule 
with the authority of despots, within particular limits ; while 
your youth are reared in the habits of thinking that the great 
rights of human nature are not so sacred but they may with in- 
nocence be trampled on, can it be expected that the public mind 
should glow with that generous ardour in the cause of freedom, 
which can alone save a government like ours from the lurking 
daemon of usurpation ? Do you not dread the contamination of 
principle ? Have you no alarms for the continuance of that spirit 
which once conducted us to victory and independence, when the 
talons of power were unclasped for our destruction ? Have you 
no apprehensions left, that when the votaries of freedom sacrifice 
also at the gloomy altars of slavery, they will at length become 
apostates from the former ? For my own part, I have no hope that 
the stream of general liberty will flow for ever, unpolluted, through 
the foul mire of partial bondage, or that they who have been ha- 
bituated to lord it over others, will not in time be base enough to 



[ w ] 

let others lord it over them. If they resist, it will be the struggle 
of pride and selfishness, not o( principle. 

" There is no maxim in politics more evidently just, than that 
. laws should be relative to the principle of government. But is 
the encouragement of civil slavery, by legislative acts, correspond- 
ent with the principle of a democracy ? Call that principle what 
you will, the love of equality, as defined by some ; of liberty, as 
understood by others ; such conduct is manifestly in violation of it. 

*' To leave the principle of a government to its own operation, 
without attempting either to favour or undermine it, is often dan- 
gerous ; but to make such direct attacks upon it by striking at 
the very root, is the perfection of crooked policy Hear what 
has been said on this point, by the noblest instructor that ever in- 
formed a statesman. 

" '■ In despotic countries,' says Montesquieu, ' where they are 
' already in a state of political slavery, civil slavery is more to- 
Merable than in other governments. Every one ought there to be 
' contented with necessaries and with life. Hence the con- 
' dition of a slave is hardly more burthensome than that of a sub- 
'^ject. But in a monarchical government, where it is of the ut- 
' most consequence that human nature should not be debased or 
' dispirited ; there ought to be no slavery. In democracies, where 
'they are all upon an equality, and in aristocracies, where the 
' laws ought to endeavour to make them so, as far as the nature of 
' the government will permit, slavery is contrary to the spirit of 

* the constitution ; it only contributes to give a power and luxury 

• to the citizens which they ought not to possess.' 

" Such must have been the idea in England, when the general 
voice of the nation demanded the repeal of the statute of Edward 
VI. two years after its passage, by which their rogues and vaga- 
bonds were to be enslaved for their punishment. It could not 
have been compassion for the culprits that excited this aversion 
to the law, for they deserved none. But the spirit of the people 
could not brook the idea of bondage, even as a penalty judici- 
ally inflicted. They dreaded its consequences ; they abhorred 
the example ; in a word, they reverenced public liberty, and 
hence detested every species of slavery. 

" Sir, the thing is impolitic in another respect. Never Avill your 
country be productive ; never will its agriculture, its commerce. 



^ 



[ 15 ] 

or its manufactures flourish, so long as tliey depend on reluctant 
bondsmen for their progress. 

" ' Even the very earth itself,' (says the same celebrated author) 
' which teems profusion under the cultivating hand of the free- 
'born labourer, shrinks into barrenness from the contaminating 
' sweat of a slave.' This sentiment is not more figuratively beau- 
tiful than substantially just. 

" Survey the countries. Sir, where the hand of freedom con- 
ducts the ploughshare, and compare their produce with you ts. 
Your granaries in this view appear like the store-houses of em- 
mets, though not suppliedv with equal industry. To trace the 
cause of this disparity between the fruits of a freeman's volun- 
tary labours, animated by the hope of profit, and the slow-paced 
efforts of a slave, who acts from compulsion only ; who has no 
incitement to exertion but fear ; no prospect of remuneration to 
encourage, would be insulting the understanding. The cause 
and the effect are too obvious to escape observation. 

" Hence, Mr. Speaker, instead of throwing obstacles and dis- 
couragements in the way of manumissions, prudence and policy 
dictate that no opportunity should be lost of multiplying them, 
with the consent of the owner. 

" But objections have heretofore been made, and T suppose 
will be reiterated now, against the doctrine I am contending for. 

" I will consider them. It has been said * that freed-men are 
' the convenient tools of usurpation ;' and I have heard allusions 
made to history for the confirmation of this opinion. Let, how- 
ever, the records of ancient and modern events be scrutinized, 
and I will venture my belief, that no instance can be found to give 
sanction to any such idea. 

" In Rome it was clearly otherwise. We have the evidence of 
Tiberius Gracchus, confirmed by Cicero, and approved by Mon- 
tesquieu, that the incorporation of the freed-men into the city 
tribes, re-animated the drooping spirit of democracy in that re- 
public, and checked the career of Patrician influence. 

" So far, tlierefore, were properly-made emancipations from 
contributing to the downfal of Rome, that they clearly served to 
procrastinate her existence, by restoring that equipoise in the con- 
stitution which an ambitious aristocracy were perpetually labour- 
ing to destroy. 



[ 16 ] 

" How much more rational, Mr. Speaker, would it be to argue 
that slaves are the fit machines by which an usurper might effect 
his purposes ! and there is, therefore, nothing which a free go- 
vernment ought more to dread than a diffusive private bondage 
within its territory. 

" A promise of manumission might rouse every bondsman to 
arms, under the conduct of an aspiring leader ; and invited by 
the fascinating prospect of freedom, they might raise such a 
storm in Maryland as it would be difficult to ajjpease. Survey 
the conduct of the slaves who fought against Hannibal in the 
second Punic war. Relying on the assurances of the Senate, 
who had embodied them with the Roman legions, that conquest 
should give them liberty, not a man disgraced himself by flight ; 
but though new, perhaps, to the field of battle, they contended 
with the resolution of veterans. With the same promptitude 
and intrepidity would they have turned their arms against the Se- 
nate themselves, if the same assurances had been given them by 
enterprising citizens, who sought their destruction from motives 
of ambition or revenge. The love of liberty is inherent in hu- 
man nature. To stifle or annihilate it, though not impossible, is 
yet difficult to be accomplished. Easy to be wrought upon, as 
well as powerful and active in its exertions, wherever it is not 
gratified there is danger. Gratify it, and you ensure your safety. 
Thus did Sylla think, who, before he abdicated the dictatorship, 
gave freedom to ten thousand slaves, and lands to a number of 
legions. By these means was he enabled, notwithstanding all 
his preceding enormities, to live unmolested as a private citizen 
in the bosom of that very country where he had acted the most 
hateful deeds of cruelty and usurpation. For, by manumitting 
these slaves, the usurper secured their fidelity and attachment 
for ever, and disposed them to support and revenge his cause at 
every possible hazard. Rome knew this,* and therefore Sylla was 
secure in his retirement. 

" This example shows that slaves are the proper, natural im- 
plements of usurpation, and therefore a serious and alarming evil 
in every free community. With much to hope for by a change, 
and nothing to lose, they have no fears of consequences. De- 
spoiled of their rights by the acts of government and its citizens, 
they have no checks of pity or of conscience, but are stimulated 
by the desire of revenge, to spread wide the horrors of desolation, 






[ 17 ] 

unci to subvert the foundations of that liberty of which they have 
never participated, and which they have only been permitted to 
envy in others. 

" But where slaves are manumitted by government, or in con- 
sequence of its provisions, the same motives which have attach- 
ed them to tyrants, when the act of emancipation has flowed 
from them, would then attach them to government. They are 
then no longer the creatures of despotism. They are bound by 
gratitude, as well as by interest, to seek the welfare of that coun- 
try from which they have deriv«;d the restoration of their plun- 
dered rights, and with whose prosperity their own is insepara- 
bly involved. An apostacy from these principles, which form 
the good citizen, would, under such circumstances, be next to im- 
possible. When we see freed-men scrupulously faithful to a law* 
less, abandoned villain, from whom they have received their 
liberty, can we suppose that they will reward the like bounty of 
a free government with the turbulence of faction, or the seditious 
plots of treason ? He who best knows the value of a blessing, 
is generally the most assiduous in its preservation ; and no man is 
so competent to judge of that value, as he from whom the blessing 
has been detained. Hence the man that has felt the yoke of bon- 
dage must for ever prove the assertor of freedom, if he is fairly 
admitted to the equal enjoyment of its benefits. 

" To show. Sir, that my idea of the danger arising from the 
number of slaves in a free government is no novelty in politics, 
permit me once more to read a passage from Montesquieu. 

" ' The multitude of slaves is no grievance in a despotic state, 
' where the political slavery of the whole body takes away the 
' sense of civil slavery. But in moderate states it is a point of the 

• highest importance that there should not be a great number of 
'slaves. The political liberty of these states adds to the value of 
' civil liberty, and he who is deprived of the latter is also de- 
' prived of the former. He sees the happiness of a society of 
' which he is not so much as a member ; he sees the securitv of 
' others fenced by laws, himself without any protection. He sees 
' his master has a soul that can enlarge itself, while his own is 
' constrained to submit to a continual depression. Nothing more 
' assimilates a man to a beast than living among freemen, him- 

' self a slave. Such people as these are the natural enemies of 

• society, and their numbers must be dangerous.' 



[ 18 ] 

'• Not gradual emancipations, tlierefore, but the extension ol 
civil slavery, ought to alarm us ; and in truth we are the only na- 
tion upon earth tliat ever considered the first as a ground of ap- 
prehension, or the last as a political desideratum. 

'' In England, while bondage existed among that enlightened 
people, enfranchisements were always encouraged by Parliament, 
and those who were entrusted with the administration of justice ; 
and throughout all Europe indeed, after the introduction of Chris- 
tianity, the gloom of civil slavery gradually receded, as their 
horizon was enlightened by the dawn of political liberty. Even 
in India, where climate and the nature of the country have of 
necessity established a political despotism, their slaves are manu- 
mitted without difficulty. No legislative restrictions to observe! 
No tyrannic clogs to struggle with ! These were reserved for 
that unhallowed sera when the rulers, in a republic produced by 
the perfection of human reason, should forget the principles of 
their constitution, of that religion they profess, of the eternal 
laws of nature, nay, the suggestions of common prudence. When 
Eastern despots surpass us in humanity, when India affords an 
evidence of justice which Maryland hesitates to exhibit, who 
does not lament the corruption of that generous spirit whose ex- 
ertions so lately attracted the attention of an admiring universe ! 

" But it has also been said (and who knows but the same opi- 
nion may still have its advocates !) " that nature has black-balled 
these wretches out of society." 

" Gracious God ! can it be supposed that thy almighty Provi- 
dence intended to proscribe these victims of fraud and power 
from the pale of society, because thou hast denied them the deli- 
cacy of an European complexion ! Is this colour the mark of 
divine vengeance, or is it only the flimsy pretext upon which we 
attempt to justify our treatment of them ? Arrogant and pre- 
sumptuous is it thus to make the dispensations of Providence 
subservient to the purposes of iniquity, and every slight diversity 
in the works of nature the apology for oppression. Thus acts the 
intemperate bigot in religion. He persecutes every dissenter 
from his creed in the name of God, and even rears the horrid 
fabric of an inquisition upon heavenly foundations. 

" I like not these holy arguments. They are as convenient for 
the tyrant, as the patriot ; the enemy, as the friend of mankind. 
Contemplate this subject through the calm medium of philosophy, 



[ 19] 

and then to know that these shackled wretches aie men as well 
as we are, sprung from the same common parent, and endued 
with equal faculties of mind and body, is to know enough to 
make* us disdain to turn casuists on their complexions, to thf 
destruction of their rights. The beauty of a complexion is mere 
matter of taste, and varies in different countries, nay, even in the 
same ; and shall we dare to set up this vague, indeterminate 
standard, as the criterion by which shall be decided on what com- 
plexion the rights of human nature are conferred, and to what 
they are denied by the great ordinances of the Deity ? As if the 
Ruler of the universe had made the darkness of a skin, the flatness 
of a nose, or the wideness of a mouth, which are only deformities 
or beauties, as the undulating tribunal of taste shall determine, the 
indicia of his wrath. 

" Sir, it is pitiable to reflect on the mistaken light in which this 
unfortunate generation are viewed by the people in general. 
Hardly do they deign to rank them in the order of beings above 
the mere animal that grazes the field of its owner. That an 
iiumble, dusky, unlettered wretch that drags the chain of bondage 
through the weary round of life, with no other privilege but that 
of existing for another's benefit, should have been intended by 
heaven for their equal, they will not believe. But let me appeal 
to the intelligent mind, and ask in what respect are they our 
inferiors ? Though they have never been taught to tread the 
paths of science, or embellish human life by literary acquire- 
ments ; though they cannot soar into the regions of taste and sen- 
timent, or explore the scenes of philosophical research, is it to be 
inferred that they want the power, if the yoke of slavery did not 
check each aspiring effort, and clog the springs of action ? Let 
the kind hand of an assiduous care mature their powers, let the 
genius of freedom excite to manly thought and liberal investiga- 
tion, we should not then be found to monopolize the vigour of 
fancy, the delicacy of taste, or the solidity of scientific endow- 
ments. Born with hearts as susceptible of virtuous impressions 
as our own, and with minds as capable of benefiting by improve- 
ment, they are in all respects our equals by nature ; and he who 
thinks otherwise has never reflected, that talents, however great, 
may perish unnoticed and unknown, unless auspicious circum- 
stances conspire to draw them forth, and animate their exertions 
in the round of knowledge. As well might you expect to see the 



[ 20 ] 

bubbling fountain gush from the burning sands of Arabia, as that 
the inspiration of genius or the enthusiastic glow of sentiment 
should rouse the mind which has yielded its elasticity to habitual 
subjection. Thus the ignorance and the vices of these wretches 
are solely the result of situation, and therefore no evidence of 
their inferiority. Like the flower whose culture has been ne- 
glected, and perishes amidst permitted weeds ere it opens its 
blossoms to the spring, they only prove the imbecility of human 
nature unassisted and oppressed. Well has Cowper said, 

" ' 'Tis liberty alone which gives the flower 
" ' Of fleeting life its lustre and perfume, 
" ' And we are weeds without it.' 

" Again, it has been urged, ' that manumitted slaves will be, 
' as in many instances they have been, nuisances in the commu- 
' nity.' T know not of instances of this kind in number suffi- 
cient to justify a general interference to the prejudice of the 
blacks : but even if they exist, the argument has no weight, for it 
is founded on what is not peculiar to those people, but, from an 
imperfect administration of criminal justice, is equally applica- 
ble to their whiter neighbours. Will any one pretend that they 
alone merit this imputation ? Extend it to your white citizens 
in the same proportion, and you will not censure uncharitably. 
I would not give a straw to choose between them. That many of 
them will be idle, and roguishly inclined, is certain, but they will 
be kept in countenance. That the majority will be honest and 
industrious is as probable as the contrary. I would trust them 
as soon as the great body of your people ; in general, sooner ; 
because the plain, simple method of life to which they have been 
accustomed, supersedes the necessity of much, and the little they 
want, their habits of labour will render it easy to supply ; and be- 
cause the terror of the law operates stronger upon their minds 
than on the minds of those who have been long hackneyed in 
the world. They have also the same inducement to industry with 
others, and I see no reason for supposing they will be lazier. 

" Thus have I anticipated and answered such objections as 
have come to my knowledge, against manumission in general. 
A variety have also been started to this particular mode. These 
too shall be examined. 



[21 ] 

" As to such as respect superannuated slaves, and the injury to 
creditors, the bill may contain the remedy. Let the bequest be 
considered in the nature of a specific legacy, to depend on the 
fact of assets ; and let all manumissions of slaves above fifty 
years old, be declared void, and the executors bound to indemnify 
the county. 

" But another objection occurs, which may deserve a more 
particular reply, because against that there can be no adequate 
provision. ' Testators may impoverish their families by incon- 
' siderate manumission in their last sickness. They may be 
' frightened by preachers, refined moralists, and others, when the 
' mind is easily alarmed and incapable of its usual resistance.' I 
answer, Sir, that if emancipations can be effected with the own- 
er^s consent, while his understanding is legally competent to 
the act, I care not through what medium, fraud excepted. 
Should he reduce his family to beggary by it, I should not be the 
one to repine at the deed. I should glory in the cause of their 
distress, while I wished them a more honest patrimony. Sir, the 
children have no claim to the property of the parent, except as 
the law casts it on them ; and, therefore, you violate no rule of 
moral justice in allowing him to transfer it in his lifetime. You 
permit their claim to be barred by the will of the ancestor in 
every instance but this ; an instance which deserves more to be 
within the rule than any other that can be mentioned, because the 
property, being founded in iniquity, cannot be too easily defeated. 
But I much fear that this common apprehension will not be veri- 
fied in practice. Families will take care that these preachers 
shall have as little access as possible to the person from whom 
they have expectations. They will not permit him, if they can 
avoid it, to close his hfe with the noblest act of justice that can 
dignify the man or characterize the Christian. The importunate 
zealot will have less employment than is expected ; less than I 
wish him. 

" We have also been told ' that manumissions by last will may 
' produce the untimely death of the maker. Slaves, knowing 
' that they are provided for in the will, may destroy their master 
' to prevent a revocation, and hasten the completion of the be- 
* quest.' 'Tis strange to tell, but I have known this objection 
relied on ; and yet it is plain that it applies with equal force to 

4 



[ 22 ] 

every devise whatsoever, let the subject be what it may, or the 
devisee as white as the snows of heaven. Who is there can dis- 
criminate ? I wish to hear a distinction attempted. I would 
draw one myself if I was able. 

" Once more, it has been alleged, ' that such humane provi- 
sions in favour of slaves will diminish their value, by rendering 
them turbulent, disobedient, and unruly.' Far different was 
the idea of a man whose name and whose opinions cannot be 
too often repeated ; a man whose greatness of soul, and profound 
discernment, beaming in every page of his works, have deserv- 
edly acquired him the admiration of his cotemporaries and pos- 
terity. I mean Montesquieu. Let those who hold this -pinion 
read the Spirit of Laws, with their understandings open to con- 
viction, and if they still retain this sentiment, I shall despair 
of producing their conversion. And yet. Sir, I cannot help 
remarking, that greatness and humanity are the parents of conci- 
liation ; but stubbornness and obstinacy are the effects of causeless 
barbarity. The more mild and equitable our laws upon this 
subject, the easier the situation of our slaves. And can it be 
believed, that to better their situation will make them more dis- 
contented with it ? — Is it probable that to abolish one sad conse- 
quence of their bondage, will give additional weight to their 
shackles ? Is the spirit of acquiescence known only in the 
gloomy regions of despair ; or is it rather to be found where the 
cheerful rays of hope diffuse their soothing influence ? Look 
back for examples to the republics of Athens and of Sparta. 
Never did the sedition of her slaves disturb the tranquillity of the 
former ; because the lenity, the justice of her regulations with 
respect to them, precluded the possibility of a murmur. But the 
slaves of Sparta made that republic a perpetual scene of commo- 
tion, because in considering them as slaves, the republic forgot 
that they were men. In addition to these observations, it may 
be remarked, that the law in question has not always existed in 
this State ; and who is it will contend that our slaves are more 
tractable now than before its passage ? In Pennsylvania, where 
they have gone to a prodigious extent towards the total abolition 
of slavery, have they felt these evils at which gentlemen affect to 
be so alarmed ? 



[ 23 ] ' 

" I have heard of no objections, except those I have already 
noticed, against the report upon the table, and I can foresee no 
more. If there are any not yet stated, I request the enemies to 
this measure to disclose them now. I offer myself ready to 
answer them, or to yield to be a proselyte to their opinion if I 
cannot. 

" Here then, Sir, let the subject rest with the House, upon its 
obvious merits. What will be their determination, I know not. 
What it ought to be, I have, at present, no doubt. You are not 
called upon, at this time, to compel an emancipation of your 
slaves. For such a measure I am no advocate, however proper 
it might be upon principle, or if the temper of the people would 
allow it (for there are times when the best laws cannot with pro- 
priety be enacted.) — Thus stands the question at present. A 
former legislature has created a barrier to the course of voluntary 
liberation. They have forbid a manumission by last will and 

testament, or in any munner during the last sickness of the 

owner : a time when the heart is most powerfully disposed to be 
generous and just. They have destroyed almost the only oppor- 
tunity these wretches can have of regaining the station to which 
God and nature have given them a title. They have thrown up 
an insuperable mound against the gentle current of humanity, to 
the additional injury of those whom they had already injured 
beyond the reach of justification. All this they have done with- 
out one rational inducement ; without even policy to plead in its 
extenuation. Will you, then, whose councils the breath of free- 
dom has heretofore inspired ; whose citizens have been led by 
Providence to conquests as glorious as unexpected, in the sacred 
cause of human nature; whose government is founded on the 
never-mouldering basis of equal rights ; will you, I say, behold 
this wanton abuse of legislative authority ; this shameful disregard 
of every moral and religious obligation ; this flagrant act of 
strained and unprovoked cruelty, and not attempt redress, when 
redress is so easy to be effected ? 

" Often, Mr. Speaker, has the public treasure relieved the wants 
of suffering merit, when the bounty of government was hardly 
reconcileable with justice ; but you have now submitted to your 
consideration a case where the finer feelings of benevolence may 



[24] 

be gratified, and right and justice add their sanction to the mea- 
sure, while the community sustains no damage. Yours, too, will 
be the gratitude of the millions whom this day's vote may give to 
breathe the air of freedom ; yours the flattering approbation of 
the friends of mankind ; and yours the pleasing consciousness of 
having, under the influence of every nobler sentiment, unloosed 
the manacles of many a fellow-creature, and led him by the hand 

to LIBERTY and SOCIAL HAPPINESS !" 



In 1792, Mr. Pinkney was elected a member of 
the Executive Council of Maryland, and continu- 
ed in that station until November, 1795, when 
being chosen a delegate to the Legislature from 
Anne Arundel county, he resigned his seat at the 
Council Board, of which he was at that time 
President. 

During all this period he continued indefatiga- 
bly devoted to his professional pursuits, and gra- 
dually rose to the head of the bar, and to a dis- 
tinguished rank in the public councils of his 
native State. " His acuteness, dexterity, and 
zeal in the transaction of business ; his readiness, 
spirit, and vigour in debate ; the beauty and rich- 
ness of his fluent elocution, adorned with the 
finest imagery drawn from classical lore and a 
vivid fancy ; the manliness of his figure and the 
energy of his mein, united with a sonorous and 
flexible voice, and a general animation and grace- 
ful delivery,"* were the qualities by which he at- 
tained this elevated standing. But there remain 
no other memorials of his professional character 
at this period of his life than such as have been 

* Mr. Walsh. 



[25 ] 

preserved in the fleeting recollection of his co- 
temporaries, in the written opinions which he 
gave upon cases submitted to him as counsel, and 
in the books of law reports. It is, however, ob- 
viously impossible to form any adequate notion of 
the powers of an advocate from the concise 
sketches of the arguments of counsel contained 
in the books of reports. But an argument which 
he delivered in 1793 upon the question whether 
the statute of limitations is a bar to the issue of 
tenant in tail, (which will be found reported in 
the 3d volume of Harris and M'Henry's Reports, 
p. 270,) may be referred to as a specimen of the 
accuracy and depth of his legal learning, and of 
his style and peculiar manner of reasoning upon 
technical subjects. 

In 1796, he was selected by President Wash- 
ington as one of the Commissioners on the part 
of the United States, under the 7th article of iMr. 
Jay's treaty with Great Britain. After consulta- 
tion with his friends, he reluctantly determined to 
accept this appointment, which had been spon- 
taneously tendered to him. He accordingly em- 
barked for London with his family, where he 
arrived in July, 1796, and was joined by Mr. 
Gore, the other Commissioner on the part of our 
government. The Board having been organized 
by the addition of Dr. Nicholl and Dr. Swabey 
as British Commissioners, and of Colonel Trum- 
bull, (a citizen of the United States appointed 
by lot,) proceeded to examine the claims brought 
before it. Various interesting questions arose, 



[26] 

in the course of this examination, respecting the 
law of contraband, domicil, blockade, and the 
practice of the prize courts, which were investi- 
gated and discussed with great learning and 
ability. Mr. Pinkney's written opinions delivered 
at the Board, which are subjoined in the Second 
Part of this publication, will, I think, be found 
to be finished models of judicial eloquence, 
uniting powerful and comprehensive argument, 
with a copious, pure, and energetic diction.* 

He was also engaged, during his residence 
abroad, in attendirtg to the claim of the State of 
Maryland for a lar^e amount of public property 
invested in the Stock of the Bank of England be- 
fore the revolution, and which had become the 
subject of a complicated Chancery litigation. He 
at last succeeded in extricating the stock from 
this situation by an arrangement under which it 
was (with his consent) adjudged to the crown, 
with an understanding that after the payment of 
the liens upon it, the balance should be paid over 
to the government of Maryland. 

The following extracts from letters to his elder 
brother, will show the nature of Mr. Pinkney's 
occupations and pursuits during his residence in 
England. 

" London, 26)th August, 1 796, 
" Dear J., — We are now London house-keepers. I found 
it would not answer to take lodgings unless we meant to do 
penance instead of beinsf comfortable. Our present residence 

* See Part SKCopfD, No. I. 



[27] 

is merely temporary. I have taken a short lease of a new house 
in Upper Guilford-street, No. 5, to which we shall remove in 
about six weeks. The situation is airy, genteel, and convenient 
enough to the Commissioners' office. We are compelled to live 
handsomely, to avoid singularity ; but our view is still to be as 
economical as the requisite style of living will admit. We do 
not and shall not want for the most respectable and agreeable 
society. The American families here are on the most friendly 
and intimate footing with us, and we have as many English ac- 
quaintances as we desire. In short, we may pass our time here 
(for a few years to come) with considerable satisfaction — not so 
happily, indeed, as at Annapolis, but still with much comfort and 
many gratifications. My health is apparently bettered, and 
Mrs. P. is evidently mending, — but we have not yet had suffi- 
cient experience of the climate to be able to conjecture its future 
effects on us. The child continues well. 

** Our namesake (the late American minister) is an amiable 
man. We have been much with him, and have received from 
him every possible attention. He unites with an excellent under- 
standing, the most pleasing manners, and is at once the man of 
sense, and the polished gentleman. Every body speaks well of 
him, and deservedly. There is no doubt of our relationship. 
His family came from the North — I think from Durham, where 
he tells me he still has relations. The loss of his wife ap- 
pears to have affected him deeply, and has doubtless occasioned 
his anxiety to return to America. He leaves us soon, and I am 
sorry that he does so. 

" Yesterday we appointed the fifth Commissioner hy lot. He 
is an American (Colonel John Trumbull,) and was Secretary to 
Mr. Jay, when envoy at this court. I made the draft. We all 
qualified this morning before the Lord Mayor, and shall com- 
mence business very soon. Every thing in relation to the com- 
mission wears at present a favourable aspect, and I have now 
expectations of being able to return to my friends within a pe- 
riod much shorter than I had ventured to hope for. 

« 2d Sept. 1796. P. S. Your letter of the 26th June has just 
reached me. Be assured that nothing can diminish my attach- 
ment to Annapolis. I have nothing to complain of from the in- 
habitants—on the contrary, they have done me honour beyond 



[28] 

my merit. I feel the worth of their attentions, and shall never 
lose the grateful recollection of them. They have treated me 
with flattering and friendly distinctions, and I will never give 
them cause to regret it. In a word, the hope of once more be- 
coming an inhabitant of ray native city forms one of my great- 
est pleasures. If 1 cannot be happy there, I cannot be happy 
any where. If I were to settle in any other place, interest, not 
inclination, must give rise to it. I know not where the wish 
of procuring a competence may hereafter fix me ; but if that 
competence can be obtained at Annapolis, there will I labour 
for it. 

" I intended to have written to Mr. James Williams, but have 
been so much interrupted and engaged as not to be able to do so. 
Indeed I have no subject for,a letter but what is exhausted in 
this. His friendly ofiices on the eve of my departure, proved 
the goodness of his heart, and made a deep impression on mine. 
Let me be remembered to him in the warmest terms. I will 
write to all my friends in due time — and in the interim tell them 
to write to me — a letter is now of real value lo me. 

" Sept. 18th. P. S. I missed the opportunity of sending my 
letter, and do not now know when I shall have another. 

" The shooting season began here the 15th inst., but I have 
not yet had a gun in hand. I envy Dr. Sheaff'the sport he will 
have in the neighbourhood of Annapolis. There can be none 
in this country to equal it. 

" Adieu — if I keep my letter by me much longer, it will be- 
come a volume of postscripts. 

" October 14th. I have just got yours of the 14th Aug. It is 
kind in you to write thus often. Persevere in a practice so well 
begun, and you will oblige me highly. The Commissioners 
commenced business the lOth inst. I was presented to the 
King on Wednesday last at St. James's. It was necessary, and 
I am glad it was, for while I am here I wish to see as much as 
possible. I was in the House of Lords at the opening of Par- 
liament, and heard his Majesty deliver his speech — but I was not 
able to hear the debate upon it in the House of Commons, as I 
wished to do. I have attended the theatre pretty often, and 
have seen all their great performers. Be assured that we are ac- 
customed in America to rate their excellence too high. There is 



hardly an exhibition in London which report does not exag- 
gerate to us. I was led to expect more than I have been able 
to find. There are subjects, however, upon which 1 have not 
been disappointed — the beauty and flourishing appearance of the 
country — the excellence of the roads — the extent and perfection 
of their various manufactures — the enormous stock of indivi- 
dual wealth which town and country exhibits, &c. &c. cannot be 
too strongly anticipated." 

"London, 2&th April, 1799. 

" Dea.r J., — I have received yeur letter of the 4th of March, 
enclosing one for Mr. Trumbull — but that of the 17th of April, 
covering a duplicate of Trumbull's letter, I have not received. 
Mr. T. has charged me with his thanks for your attention — and 
will, I presume, write to you himself. 

" I am grieved by the style of your letter. If I have neglect- 
ed you, it has not been from want of affection or forgetfulness 
of what I owe to your worth. I did not know that it would be 
acceptable to you to hear very often or very fully from me ; and 
if on that account I have sometimes made you trust to others for 
tidings of me, and at other times have written rather scantily on 
subjects that might have been interesting to you, I ask to be 
forgiven. 

" To say the truth, a long letter of a merely friendly com- 
plexion is not easily made. It would be idle to give you in such 
a letter the news of the moment, for the news would cease to be 
so before the letter could reach you ; and I should fatigue you to 
death if I were to doom you to read accounts of London amuse- 
ments, or of the manner in which I pass my time. Such details 
would soon have no novelty to recommend them, and would lose 
all attraction. 

" I have seen in this country, and continue to see, much that 
deserves the attention of him that would be wise or happy ; but 
I would prefer making all this the subject of conversation, when 
Providence shall permit us to meet again, to putting it imper- 
fectly on paper for your perusal when we are separated. There 
is not perhaps a more dangerous thing for him who aims at con- 
sistency, or at least the appearance of it, than to hasten to record 



[30] 

impressions as they are made upon his mind by a state of things 
to which lie has not been accustomed, and to give that record 
out of his own possession. I have made conclusions here, from 
time to time, which I liave afterwards discarded as absurd ; and 
I could wish that some of these conclusions did not show them- 
selves in more than one of the letters I have occasionally written 
to my friends. I have made false estimates of men and things, 
and have corrected them as I have been able ; in this there was 
nothing to blush for, for who is there can say he has not done the 
same ? — But I confess that 1 do feel some little regret, when I 
remember that I have sent a few (though to say the truth, very 
few) of those estimates across the Atlantic, as indispiitably ac- 
curate, and have either deceived those to whom they were sent, 
or afforded them grounds for thinking me a precipitate or super- 
ficial observer. The consciousness of this has indisposed me to 
a repetition of similar conduct ; and I have desired so to write 
in future as to be able to change ill-founded opinions without the 
hazard of being convicted of capriciousness or folly. You will 
observe that I am all this time endeavouring to make my peace 
with you on the score of your complaint of negligence ; but after 
all, I must in great measure rely upon your disposition to bear 
with my faults, and to overlook those you cannot fully acquit. 
I must not, however, omit to state my belief that you do not 
receive all the letters I send you, and of course that I appear to 
you more culpable than I really am. 

" I wish 1 could tell you when I shall be likely to see you 5 
although my time passes in a way highly gratifying, I am anxious 
to return. Our acquaintance has lately very much enlarged 
itself, and our situation is altogether peculiarly pleasant for fo- 
reigners ; but I sigh now and then for home. I am told that I am 
considerably altered since I came here, and I incline to think 
there is some foundation for it ; but I shall not grow much wiser 
or better by a longer stay. I am become familiar with almost 
every thing around me, and do liot look out upon Hfe with as 
much inteatness of observation as heretofore, and of course I 
am now rather confirming former acquisitions of knowledge 
than laying in new stores for the future — I begin to languish for 
my profession — I want active employment. The business of the 



[ 31 ] 

commission does not occupy me sufficiently, and visiting, &c. 
with the aid of much reading, cannot supply the deficiency My 
time is always filled in some way or other ; but I think I should 
be the better for a speech n(»w and then. Perhaps another 
twelvemonth may give me the opportunity of making speeches 
till I get tired of them — and tire others too. 

" There are some respects in which it may be better that I 
should remain here a little longer ; my health, though greatly 
mended, is still delicate — I look better than I am ; and perhaps 
a summer at Brighton or Cheltenham may make me stronger- 
The last winter has been unfavourable to me, by affecting my 
stomach severely, and- 1 have at this moment the same aflettion 
in a less degree, accompanied with a considerable head-ach. 
I ought to have good health, for I take pains to acquire it ; and 
have even gone so far as to abandon the use of tobacco, to which 
I was once a slave. — It is now about eighteen months since I 
have tasted this pernicious weed ; but I did not forbear the use 
of it solely on account of my health ; I found that it was consi- 
dered here as a vulgar habit, which he who desired society must 
discard." 

" London, lAth February, 1800. 

" Dear J., — It is now so long since I have had a line from you, 
that I must conclude I have been unlucky enough to give you 
offence for which it is necessary I should atone. What it can 
be I have no means of conjecturing ; but let it be what it may, 
you ought to believe that it has been wholly accidental. You 
complained to me some time ago that I was a negligent corres- 
pondent ; I explained the cause, and asked to be forgiven. If 
that explanation did not satisfy you, -at least my prayer of pardon 
had some claim to be well received. I think I know you so 
well that I may venture to be certain you are not still angry with 
me for the old reason. There must be some new ground of 
exception. Let me know it, I entreat you, and I will make 
amends as far as I am able, I had indeed hoped that it would not 
be for ordinary matters that you would forget my claims to your 
friendship, if not your affection. I had supposed that you would 
not lightly have been induced to treat me as a stranger ; and to 



[ 32 ] 

substitute the cold intercourse of ceremony for that of the heart. 
Why will you allow me to be disappointed in expectations so 
reasonable, and so justly founded on the natural goodness of 
your disposition, and the soundness of your understanding ? Can 
you imagine that I do not recollect how much I am indebted to 
your kindness on various occasions, and how strong is your title 
to my attachment and respect? If I have appeared to slight 
your letters by sometimes giving them short answers, and some- 
times delaying to give them any, can you think so meanly of me 
as to suppose that therefore I have not placed a proper value on 
them and you ? I declare to God that if you have made this 
supposition, you have been unjust both to y6urself and me. There 
is not a person on earth for whom I have a more warm and sin- 
cere regard, nor is there one whose correspondence, while you 
permitted it to last, was more truly grateful to me. I beg you, 
therefore, to resume it, and to resume it cordially. — But if, after 
all, you arfi so different from yourself as to persist in regarding 
me as one who has no better ties upon you than the rest of the 
world, at least tell me why it is that this must be so. 

" Of the late revolution in France and of Bonaparte's ad- 
vances to negotiation, with the rejection of these advances, you 
will have heard before this can reach you. T was present very 
lately in the House of Commons at the debate on the rejection 
of these overtures. So able and eloquent a speech as Mr. Pitt's 
on that occasion, I never witnessed. Experience only can de- 
cide how far the conduct he vindicated was wise. Administra- 
tion have undoubtedly sanguine hopes of restoring the House of 
Bourbon; and prodigious efforts will be made during the next 
campaign with that object. I do not think this will succeed. 
The co-operation of Russia still remains equivocal ; but even if 
Russia should give all her strength to the confederacy, it will not 
have power to force upon France the ancient dynasty of that 
country with all the consequences iiiseperable from it. The 
present government of tliat ill-fated nation is a mockery — a rank 
usurpation by which political freedom is annihilated ; but it is a 
government of energy, and tvill be made yet more so by an 
avowed attempt to overturn it by a foreign army in favour of the 
exiled family. This is my opinion ; but the war in Europe has 



[ 33 ] 

so often changed its aspect against all calculation that prophe- 
cies about its future results, are hardly worth the making. The 
death of General Washington has ascertained how greatly he 
was every where admired. The panegyrics that all parties here 
have combined to bestow upon his character have equalled those 
in America. 

" P. S. As our commission is at a stand on account of the 
disagreements under the American commission, I can form no 
guess as to the probable time of my return. There is little pros- 
pect, however, of its being very soon. I must be patient, and 
am determined to see it out ; but I wish most ardently to revisit 
my country and my friends. I think it likely that my brother 
Commissioner, Gore, will take a trip to America next summer, 
and come back in the course of the autumn. I am afraid we 
shall both have leisure enough for a voyage to the East Indies. 
I have nothing to do here but to visit, read, write, and so forth — 
In this idle course I certainly grow older and perhaps a little 
wiser ; but I am doing nothing to expedite my return. 

" Pray can you make out to send me a box of Spanish cigars ? 
If you can, I will thank you ; for 1 find it beneficial to smoke a 
cigar or two before I go to bed. This I do by stealth, and in a 
room devoted to that purpose ; for smoking here is considered a 
most ungentlemanlike practice. Having left off chewing tobacco, 
which was prejudicial to me, I have taken up the habit of smoking 
to a very limited extent in lieu of it ; and as I find it serviceable 
to me, and nobody knows it, I think I shall continue it. Remem- 
ber me affectionately to Ninian, and tell him I mean to write to 

him soon. JVIrs. Pinkney hears that William is able to write 
something like a letter. If this be so, she begs you will request 

Ninian to make him write to her." ****** 

" London, August 27th, 1800. 
" Dear J., — I received your letter of the 27th JVIay, while in 
the country, and delayed answering it till my return to town. For 
your good intentions relative to the cigars, I am much obliged to 
you, and I heartily wish it was in my power to thank you for the 
cigars themselves, of which I have heard nothing otherwise 
than in your letter. Perhaps I may still get them — but I have 



[34 ] 

not much hopes. Make my acknowledgments to Mr. Williams 
for the box you speak of as being a present from him. As there 
is no person for whom I feel a more warm and sincere regard, 
and upon whose friendship I more value myself, you may be as- 
sured that this little proof of his recollection, gives me the great- 
est pleasure. I shall not easily forget the many kind attentions 
I have received from him — nor can ever be more happy than 
when an opportunity shall occur of showing the sense I entertain 
of them. 

" Whether the justification you offer for ceasing to write me 
is a sound one or not, it is not worth while to inquire. You have 
written at last, and this puts out of the question all past omissions. 
Perhaps we have been both to blame — or perhaps the fault has 
been wholly mine. I will not dispute with you on this point, 
but I entreat that in future it may be understood between us that 
trifles are not to be allowed to bring into doubt our regard for 
each other, and that our intercourse is not to be regulated by the 
rules of a rigorous ceremony. While I admit what you urge in 
regard to my neglect of you, 1 take leave to enter my protest in 
the strongest terms against the general charge made in your letter 
that I have neglected several others in the same way. I have 
had no correspondent in America (I have already excepted you) 
who has not generally been in my debt. The truth is, my friends 
have overlooked me in a strange way — and I have been compel- 
led to jog their memories more than perhaps I ought to have done. 
As to xMnian, you know very well that in writing to you I con- 
sidered myself as writing to him ; for I did not imagine it was de- 
sirable that I should make two letters, which should be little 
more than duplicates, when one would serve just as well. But 
since I have discovered that ISinian wished me to write to him, I 
have taken pleasure in doing so — and for some time past, 1 think 
he has no cause to complain of me on this score. * * * 

" It is my most earnest wish to return home without loss of time, 
and to apply in earnest to my profession for the purpose of se- 
curing, while my faculties are unimpaired, a competence for my 
helpless family. For several months past I have thought of desiring 
from my government to be recalled, and if the prospect of our 
resuming our functions does not greatly change for the better be- 



[35] 

fore next spring, I shall undoubtedly have recourse to this step. 
At present, it is not practicable to form even a conjecture upon 
this subject. We have been stopped by the difficulties that have 
occurred under the 6th article of the treaty, and not by any thing 
depending on ourselves, or connected with our own duties. If 
we had not been thus arrested in our progress, we should have 
finished ere now, or at farthest by Christmas, to the satisfaction 
of all parties. The arrangement under the 6th article will be ac- 
complished, I am afraid, very slowly, if at all — and even when 
that arrangement shall be made, the execution of it will demand 
several years ; and we are not, it seems, to outstrip the advances 
it shall make. Thus it is probable that I shall grow old in this 
country, unless I resign. In short, I see very little room to doubt 
that I shall be driven to this expedient. So much for the mis- 
management and folly of other people ! 

" The commission in America has been wretchedly bungled. 
I am entirely convinced that with discretion and moderation 
a better result might have been obtained ; be this as it may, 
it is time for me to think seriously of revisiting my country, 
and of emfiloy ing myself in a profitable pursuit. I shall soon 
begin to require ease and retirement ; my constitution is we^k, 
and my health precarious. A few years of professional labour 
will bring me into the sear and yellow leaf of life ; and if I do 
not begin speedily, I shall begin too late. To commence the 
world at forty is indeed dreadful ; but I am used to adverse 
fortune, and know how to struggle with it ; my consolations 
cannot easily desert me — the consciousness of honourable views, 
and the cheering hope that Providence will yet enable me to pass 
my age in peace. It is not of small importance to me that I 
shall go back to the bar cured of every propensity that could 
divert me from business — stronger than when I left it — and I 
trust, somewhat wiser. In regard to legal knowledge, I shall 
not be worse than if I had continued ; I have been a regular and 
industrious student for the last two years, and I believe myself 
to be a much better lawyer than when I arrived in England. 
There are other respects too, in which I hope I have gained 
something— how much, my friends must judge. But I am wea- 



[ 36] 

ryiug you with prattle about myself, for which I ask you to 
excuse me. 

» * * * « I received Ninian's letter by Mr. Gore, but 
have not now time to answer it. I wrote him very lately. Re- 
quest him to get from Mr. Vanhorne the note-book, or note 
books I lent him, and to take care of them for me. In one of 
my note books I made some few reports of General Court and 
Chancery decisions. Let it be taken care of. When I write 
again, I hope to be able to state when it is probable I shall have 
a chance of seeing you. When I do return, it is my present 
intention to settle at Annapolis, unless I go to the federal city. 
No certainty yet of peace — but I continue to prophesy (notwith- 
standing the Emperor of Russia's troops) that a Continental 
peace will soon take place. The affair between this country and 
Denmark will probably be settled by Denmark's yielding the 
point. I have no opinion of the armed neutrality so much talked 
of. It could do nothing now, if it were formed — but I doubt the 
fact of its formation." 

The following is extracted from a letter to his 
bl'other, Mr. iNinian Pinkney, dated July 21st, 
1801. 



" Report has certainly taken great liberties with my letter to 
Mr. Thompson. Undoubtedly I have never written to any person 
sentiments that go the length you state. When the contest for 
President was reduced to Mr. Jefferson and Mr. Burr, my judg- 
ment was fixed that the former ought to be preferred — and I went 
so far as to think that his superiority in every particular that gives 
a title to respect and confidence, was so plain and decided as to 
leave no room for an impartial and unprejudiced man to hesi- 
tate in giving him his voice. Of course it is probable tha in re- 
ference to the result of this competition, when it was known, 
I have expressed myself in some of my letters to my friends as 
highly pleased, and that before it was known, I expressed my 
wishes that the event might be such as it has been. It is highly 



[ 37 ] 

probable too that, even before the contPSt was brought to this al- 
ternative, I have said that, whatsoever may have been my wishes, 
I felt no alarms at the idea of Mr. Jefferson's success. I do not 
remember that I have said thus much, but I believe it to be likely, 
because it would have been true. 

" I have at all times thought highly of Mr. Jefferson, and have 
never been backward to say so. I have never seen, or fancied I 
saw, in the perspective of his administration the calamities and 
disasters, the anticipation of which has filled so many with terror 
and dismay. 

" I thought it certain that a change of men would follow his 
elevation to power — but I did not forebode from it any such 
change of measures as would put in hazard the public happiness. 
I believed, and do still believe him to be too wise not to compre- 
hend, and too honest not to pursue the substantial interests of 
the United States, which it is in fact almost impossible to mis- 
take, and which he has every possible motive to secure and pro- 
mote. I did not credit the suggestions that unworthy prejudices 
against one nation, or childish predilection for another, would 
cause him to commit the growing prosperity of his country to 
the chances of a war, by which much might be lost, but nothing 
could be gained, except the fruits of petty hf)stility and base pil- 
lage on the ocean. I did not credit, and often did not understand, 
the vague assertions that he was a disorganizer — an enemy to all 
efficient government — a democrat — an infidel, ^'c &c. 

" In the past conduct of Mr. Jefferson, so far as it had come to 
my knowledge, I discovered no just foundation for these asser- 
tions — and I am not to be influenced by mere clamour trom what- 
soever quarter it may come. In short, I never could persiiade 
myself to tremble, lest the United States should find, in the presi- 
dency of Mr. Jefferson, the evils which might be expected to flow 
from a weak or a wicked government. I am, on the conirary, 
satisfied that he has talents, knowledge, integrity, and stake in 
the country sufficient to give us well-founded confidence, that our 
affairs will be well administered so far as shall depend on him ; 
although he may not always perhaps make use of exact!" the 
same means and agents that our partialities or peculiar opinions 
might induce us to wish. 

6 



[38 ] 

" I hope you are deceived as to the possible consequences of 
the ensuing state elections. What has Mr. Jefferson's being 
President of the United States to do with your General Court, 
Chancery, &c, ? Without tracing the peril in which these esta- 
blishments manifestly are, to the ascendancy of this or that 
political party in the nation at large, it may be found in the local 
interests of the different counties at any distance from the seat of 
Justice — in the interests of the attornies who swarm in every 
part of the state, and in the House of Delegates — in the plausible 
and popular nature of the theory that justice should be brought 
home to men's doors, and that it should be cheap, easy and 
expeditious — in the love of change which half the world believe 
to be synonymous with improvement — in the disgust of parties 
who have lost their cause and their money at Annapolis, or 
Easton, and who imagine they would have done better in the 
County Court— and in a thousand other causes thata long speech 
only could enumerate. Five years ago your House of Delegates 
voted the abolition of the General Court, and yet Maryland was 
at that time in high reputation as a federal state. The Senate, 
it IS true, rejected the bill ; not, however, because they were 
more federal than th.*" House of Delegates, but simply because 
they had good sense enough to perceive that the bill was a very 
foolish affnir ; and I have confidence that your next Senate, 
whether Mr. Jefferson's partizans or opposers, will manifest the 
same soundness of mind and firmness of conduct. I profess I 
am a good deal surprised that you at Annapolis who are inte- 
rested locally, as well as generally, in preserving the General 
Court, &c. should be so imprudent as to cause it to be undet-- 
stood that you consider the whole of a great and triumphant 
party in the state as hostile upon principle to these establish- 
ments. For my part, I would hold the opposite language, and 
wtiuld industriously circulate my unalterable conviction that this 
was no party question, but such a one as every honest man, a 
friend to the prosperity of Maryland, find to the purity of justice, 
cannot fail to oppose. By making a party question of it, you are 
in great-'r dunier of a defeat than you otherwise woidd be, be- 
cause you may give party men inducements to vote for it, who 
in a different and more correct view of the subject might vote 



1 



[39] 

the other way. You are on the spot, however, and must have 
better means of judging on this head than I have. No man 
would lament more sincerely than I should do the destruction of 
what I consider the fairest ornaments of our judicial system. 
If I was among you, I would spare no honest effort to stem the 
torrent of innovation, which has long been threatening the supe- 
rior courts, and will finally overwhelm them. But I should not 
believe that I was promoting my object by putting in array 
against me, and insisting on considering and treating as adver- 
saries, a numerous and zealous body of men with whom I hap- 
pened to differ on some other topic, and who perhaps if I would 
allow them to take their own stations, would be found on my 
side." 

" London, July 2lst, 1803. 

" Dear N., — I received your kind letter of the 31st of May 
on yesterday. You had omitted to write to me for so great a 
length of time, that I had despaired of again hearing from you 
during my stay in England. Your letter has, of course, given 
me more than usual pleasure. 

" I offer you my congratulations on your marriage, which you 
have now for the first time announced to me. Mrs. P. desires 
me also to offer you hers. We both wish you all the happiness 
you can yourself desire. 

" It is now certain that I am riot to see you this year. Our 
commission will, however,- close next winter, and in April or 
May, if I live and do well, I shall undoubtedly be with you. In 
the mean time, such insinuations as you mention, let them come 
from what quarter they will, (and I can form no conjecture 
whence they come,) can give me no uneasiness. I am not so in- 
ordinately fond of praise <is to be disappointed or provoked when 
I am told that there are some who either do or affect to think 
less of my capacity than I would have them. What station you 
allude to, I am wholly unable to judge, but I know that I have 
never sohcited any. I am no office-hunter. Without professing 
to shun public employment when it seeks me, I can truly say 
that I disdain to seek it. My reliance, both for character and 



[40] 

fortune, is, under Providence, t)n my profession, to which I shall 
immeuiately return, and in ihe practice of which I do not fear to 
silence those insinuators. What I am must soon be seen and 
known. The bar is not a place to acquire or preserve a false 
or fraudulent reputation for talents ; and I feel what is, I hope, 
no more than a just and honourable confidence, in which I may 
indulge without vanity, that on that theatre I shall be able to 
make my depredators acknowledge that they have undervalued 
rae. 

^* I. shall mingle too in the politics of my country on my re- 
turn ; (I mean as a private citizen only ;) and then I shall not fail 
to give the world an opportunity of judging both of my head and 
my heart. Enough of this. 

" I have constantly believed that America has nothing to fear 
from the men now at the head of our affairs — and in this I 
think ^ou will soon agree with me, notwithstanding the imerested 
clamour of their adversaries. * * * Time will show in what 
hands the public power in America can be most safely deposited. 
To that test you wdl do well to refer yourself. In the mean 
time it appears to be a rational confidence that no party can long 
abuse that power with impunity." 

The following are extracts from letters to his 
friend, Mr. Cooke, an eminent lawyer in Mary- 
land. 

"London, August Sth, 1803. 

« My Dear Sir, — The kindness of your last letter, which I 
received about a week ago, and which I shall long bear in mind, 
will not allow me to forego the pleasure of writing you once 
more (though but a few Tr.es) during my stay in England. I 
say once more, because 1 trust that early in the spring I shall com- 
mence my voyage for America, and of course shall have no 
inducement to write again. I was entirely convinced before the 



[41] 

receipt of your last, that your letter of December, on the subject 
of the Maryland business, was dictated as you say, by friendship ; 
and I not only felt all the value of the motive, but thanked you 
sincerel}* for the communication itself. 

" I had not heard of your rejection of the appointment to the 
Court of Appeals, and I am truly sorry that you have rejected it. 
Of the circumstances attending the offer or the views by which 
it was either influenced or resisted, I know nothing ; but I know 
that the appointment would have been the best that could have 
been made ; and I believe that the public have a right to your 
services, now that it is no longer necessary that you should 
labour for yourself. I have, however, so much reliance on the 
correctness of your judgment, that I must presume you have 
done right, and that I see only half the subject. 

" I am prepared on my return to find the spirit of party as 
high and phrenzied as the most turbulent would have it. I am 
even prepared to find a brutality in that spirit which in this 
country either does not exist, or is kept down by the predomi- 
nance of a better feeling. I lament with you that this is so ; and 
J wonder that it is so — for the American people are generous, 
and liberal, and enlightened. We are not, I hope, to have this 
inordinate zeal, this extravagant fanaticism, entailed upon us — 
although really one might almost suppose it to be a part of our 
political creed that internal tranquillity, or rather the absence of 
domestic discord, and a rancorous contention for power, was 
incompatible with the health of the state, and the liberty of the 
citizen. I profess to be temperate in my opinions, and shall put 
in my elaim to freedom of conscience ; but when both sides are 
intolerant, what hope can I have that this claim will be respected ? 
At the bar I must contrive as well as I can, for I must return to 
it. I have no alternative ; and if I had, choice would carry me 
back to the profession. I do not desire office, although I have 
no such objections to the present administration, as, on what are 
called party principles, would induce. me to decline public em- 
ployment. It is my wish to be a mere professional labourer — 
to cultivate my friends and my family, and to secure an honour- 
able independence before I am overtaken by age and infirmity. 
My present intention is to fix in BaUimore, where I will flatter 



[42] 

)ayself I shall find some who will not regret my choice of resi- 
dence, 1 had understood with unfeigned concern the severe loss 
you allude to, and knew the pain it would occasion. You have, 
however, the best of consolations in those whom she has left 
behind ; and it is my most earnest wish that they may be long 
spared to you, and you to them. In a family like yours every 
loss must be deeply felt ; for none can be taken away without 
diminishing the stock of worth and happiness to which each is so 
well calculated to contribute. But you have -still about you 
enough to preserve to life all that belongs to it, of interest and 
value, to which, my dear Sir, you can add that which many 
cannot, the perfect consciousness of having deserved it. I beg 
you to remember me in the most friendly terms to your sons, and 
to present our affectionate compliments to Mrs. Cooke." 

" London, February 1 bth, 1 804. 

" My Dear Sir, — Your letter of the 2d of December, which 
I received on the 23d of last month, is among the most pleasing 
of the many proofs which my long absence from America has 
procured me of your valuable friendship. It is not in my pow- 
er to manifest by words the sensibility which such kindness ex- 
cites in my heart. I must leave it to time therefore to offer me 
other means. 

" The application to the government of the United States, for 
an outfit, was the joint application of Mr. Gore and myself ; and 
as it was addressed wholly to i\ii^ justice of the government, and 
asked no favour, I did not suppose that it would be proper to 
endeavour to interest my friends generally in its success. It 
seemed to me that this would have argued a distrust either of the 
claim itself, or of those to whom it was preferred ; and as I really 
had the most perfect confidence in both, I was not disposed to 
act as if I had none. Accordingly, I mentioned the subject 
only to General Smith, as a senator of the United States, re- 
questing of him, in case the President should lay it before Con- 
gress, such explanations and support as it might seem to him to 
require, and his view of it, [as a demand of right,) would jus- 
tify. More than this, I could not prevail upon myself to do, 
although I began several letters to different persons whose good 



[43] 

offices I thought I might venture to ask. General Smith has 
answered my letter, and otherwise acted on this occasion in a 
way to deserve my particular thanks. I have no doubt, however, 
that the claim has been rejected ; and I understand that I am not 
likely to derive much consolation for this rejection, from the 
manner in which our application has been received and treated. 
It would not be proper to say more upon a transaction of which 
X have at present such scanty knowledge, and the result of which 
may not be such as I conjecture it to be. 

" General Smitli mentions another matter, of which you also 
take notice — I mean the desire expressed by some gentlemen of 
Baltimore, who have been benefitted by my services in England, 
to make me some pecuniary acknowledgment. My answer, 
written in a hurry, and therefore, perhaps, not exactly what it 
ought to be, declines this proposal, for which, however, T cannot 
but be sincerely thankful to those from whom it proceeds. Gene- 
ral Smith will probably show you my letter, and I should be glad 
that you would even ask him to do so. 

" As to the arrangement of a loan, it is liable, in substance, to 
all the objections applicable to the other, and consequently inad. 
missible. I must, therefore, do as well as I can with my own 
resources — and I have the satisfaction to know that T shall leave 
England with my credit untouched, and in no tradesman's debt. 
If it will distress me to return to Maryland, with my large family 
(as I am not ashamed to confess it will,) I shall at least have to 
sustain me under it, the consciousness that no vice has contri- 
buted to produce it — that my honour has no stain upon it — and 
that although it may be ^misfortune to become poor in the pub- 
lic service, it is no crime. For the rest, I rely upon Providence 
and my own efforts in my profession. 

" I am ashamed, my dear Sir, that almost every word of this 
letter has myself for its subject ; and I should be yet more so, if I 
did not recollect that it is to you who have encouraged me thus to 
play the egotist. I am not likely, however, to sin in this respect, 
at least for some time, as I hope to leave this country in March, 
for the United States, and shall of course be under no temptation 
to write again, even to you. 

" The affair of the Maryland stock is in train, and I have now 
a fair prospect of settling it (as 1 hope satisfactorily) after much 



[ 44 ] 

anxiety, vexation, and difficulty. A week or two more will, I 
trust, conclude it. I shall not make any communication on this 
subject to the government of the United States, or of Maryland, 
until I am enabled to say that the stock has been transferred. 
Some sacrifice on our part has been found indispensable — but if 
with that sacrifice the residue can be immediately secured, we 
ought, in my opinion, to rejoice. That business closed, I shall 
only wait for a vessel sufficient to accommodate my family, 
bound to Baltimore. None has yet offered — and I begin to have 
some fears on that score. I must have patience." 



Mr. Pinkney's services in the business of the 
Bank Stock were suitably acknowledged by the 
State of Maryland, after his return to this coun- 
try, as will appear by the following extract from 
a letter to his brother, Mr. Ninian Pinkney. 

" Baltimobe, Thursday night, 
* Dear N,, — I have received your letter by W., and the others 
of a prior date. I am perfectly satisfied with the resolution, and 
have no wish that more should be done. I am grateful to the 
House of Delegates for their kind and liberal attention to my 
fortune and character, and should be sorry that any of my parti- 
cular friends should express any dissatisfaction, or endeavour to 
procure any addition to the compensation. My desire has al- 
ways been that the act of the Legislature should not only, ap- 
pear to be, but should, in fact ^ be perfectly voluntary — unsoli- 
cited on my part, or on the part of my family or friends. In this 
light I consider the resolutions of which you have enclosed me 
copies ; and in this light, I think I cannot but approve of them. 
" I thank you tor your observations as to Col. Mercer— I 
have the utmost confidence in his friendly disposition. Tell Mr. 
Montgoniery that I have received his kind letter, and am more 
obliged to him than I am able to say, for that and other proofs of 
his regard — which I shall ever bear in mind. 1 think I shall go 
to Annapolis on Monday next, but am not sure. The resolutions, 
however, ought not to be delayed." 



[45 ] 

On his return to the United States, in August, 
1804, Mr. Pinkney immediately resumed with 
renewed ardour his professional pursuits. Dur- 
ing his long residence in England, he had never 
laid aside his habits of diligent study, and had 
availed himself of his opportunities of intercourse 
with the accomplished lawyers of that country, 
and of frequenting the courts of justice, to enlarge 
and improve his legal attainments. He was, by 
his public station, brought into immediate contact 
with most of the eminent English civilians, and 
was much in the society of that accomplished and 
highly gifted man, Sir William Scott. He had 
occasion to witness some of the powerful exer- 
tions at the bar, of Mr. Erskine, who was then in 
the meridian of his fame. He was in the con- 
stant habit of attending the debates in the two 
houses of Parliament ; a higher standard of lite- 
rary attainments than had been thought necessary 
to embellish and adorn the eloquence of the bar 
in his own country was held up to his observa- 
tion. He employed his leisure hours in endea- 
vouring to supply what he now found to be the 
defects of his early education, by extending his 
knowledge of English and classical literature. 
He devoted peculiar attention to the subject of 
Latin prosody, and English elocution ; aiming, 
above all, to acquire a critical knowledge of his 
own language — its pronunciation — its terms and 
significations — its synonymes ; and in short, its 
whole structure and vocabulary. By these means 

7 



[ 46] 

he added to his natural facility and fluency, a 
copiousness and variety of elegant and appro- 
priate diction, which graced even his colloquial 
intercourse, and inij^arted new strength and beauty 
to his forensic style. 

Soon after his return from England, he sought 
a more ample field for his professional labours* 
by removing from Annapolis to Baltimore, and 
by attending tire Supreme Court at Washington. 
In 1805, he was appointed to the office of Attor- 
ney-General of the state of Maryland, which he 
accepted, upon the conditions mentioned in the 
following letter ; and with the view of consulting 
the feelings, and (as far as possible) reconciling 
the conflictinsT claims of two of his friends. 



"Baltimoue, December 22, 1805. 

" Dear N., — I send by Mr. Wilmot my answer to the letter 
of the Board, wliich will of course be considered as an acceptance 
of the office of Attorney-General. 

" I cannot now refuse this office, although personally incon- 
venient and disadvantageous. My intention is not to touch a far- 
thing of the »'nioluments of it, but to give them to Mr. Scott; and 
as soon as Mr. Johnson is constitutionally capable of holding it, 
to resign the appointment into the hands of those who now offer it 
to me, to be then disposed of as they shall think proper. 

" I trust that this course of conduct has nothing in it which 
can be disapproved. It is at least disinterested — for I can de- 
rive no possible advantage from it, and shall necessarily sacrifice 
what I might olherwi>e gain by appearing against the State. 
I shall take rare that the duties of the office are properly dis- 
charged by myself personally, when necessary." 



[47] 

Mr. Pinkney continued to prosecute his pro- 
fessional pursuits with unwearied assiduity, until 
the year 1806, when he was again called into the 
service of his country by events which were even 
then thought to be of great concern, and which 
ultimately involved the United Btates in war with 
Great Britain. 

In the course of the ensuing year after his 
return from England, several cases of capture of 
our merchant vessels, engaged in carrying the 
produce of the colonies of the enemies of Great 
Britain to Europe had occurred, which threat- 
ened the total destruction of that important 
branch of our carrying trade. These seizures 
were grounded upon a revival, by the British 
government of a doctrine which had acquired the 
denomination of the Rule of the War of 1756, 
from the circumstance of its having been first 
applied by the Courts of Prize in that celebrated 
war. The French (then at war with Great 
Britain,) finding their colonial trade almost en- 
tirely cut ofi" by the maritime superiority of the 
British, relaxed their monopoly of that trade, and 
allowed the Dutch (then neutral) to carry on the 
commerce between the mother country and her 
colonies, under special licenses or passes, granted 
to Dutch ships for this particular purpose, exclud- 
ing, at the same time, all other neutrals from the 
same trade. Many Dutch vessels so employed 
were captured by the British cruizers, and, toge- 
ther with their cargoes, condemned by the Prize 
Courts, upon the principle that by such employ- 



[48] 

nient they were, in effect, incorporated into the 
French navigation, having adopted the character 
and trade of the enemy, and identified them- 
selves with his interests and purposes. They 
were, in the opinion of these Courts, to be con- 
sidered like transports in the enemy's service, 
and hence liable to capture and confiscation, upon 
the same principle as property condemned by 
way of penalty for resistance to search, for breach 
of blockade, for carrying military persons or des- 
patches, or as contraband of war ; in all which 
cases the property is considered, pro hac vice, as 
enemy's property, and so completely identified 
with his interests as to acquire a hostile character. 
But it is obvious to remark that there is all the 
difference between this principle and the doctrine 
which interdicts to neutrals, during war, all trade 
not open to them in time of peace, that there is 
between the granting by the enemy of special 
licenses to the subjects of the belligerent state, 
protecting their property from capture in a parti- 
cular trade, which the policy of the enemy induces 
him to tolerate, and a general exemption of such 
trade from capture. The former is clearly cause 
of confiscation, whilst the latter has no such 
effect. The rule of the war of 1756 was founded 
upon the former principle, and likewise upon a 
construction of the treaties between Great Britain 
and Holland, in which the former power con- 
tended was conceded to the latter a freedom of 
commerce only as to her accustomed trade in time 
of peace. The Rule lay dormant during the war 



[ 49 ] 
of the American revolution ; but was afterwards 
revived during the first war of the French revolu- 
tion, and extended to the prohibition of all neutral 
traffic whatsoever with the colonies, and upon the 
coasts of an enemy. But as indemnity was given 
by the Commissioners under the treaty of 1794 
for captures made upon this pretext, and as it had 
been expressly admitted in Lord Hawkesbury's 
letter to Mr. King, of April 1 1th, 1801, (enclosing 
an official report of Sir John NichoU, then Ad- 
vocate General,) that the colonial trade might 
be carried on circuitously by neutrals, and that 
landing the cargo broke the continuity of voyage, 
so as to legalize the trade thus carried on, there 
was the more reason for surprise and complaint 
on the part of the government and people of the 
United 8tates at this unexpected attack upon our 
commerce. 

The revival and extended application of this 
Rule gave rise to numerous publications both 
on this and the other side of the Atlantic ; in 
which the respective pretensions of both countries 
were elaborately discussed. Among these was 
a pamphlet, entitled, War in Disguise^ or the 
Frauds of Neutral Flags, written by Mr. Ste- 
phen, an English barrister, who had been much 
engaged in the argument of Prize Causes, before 
the Lords of Appeal, and was supposed to enjoy 
the confidence of the ministry Tj^his production 
was examined, and its reasonings successfully 
combated by a very able writer in the Edinburgh 



[ 50 ] 

Review.* It was also answered by Mr. Gouver- 
neur Morris ; and the whole subject was after- 
wards thoroughly discussed by Mr. Madison, in 
a work entitled, " An Examination of the British 
"doctrine which subjects to capture a neutral 
" trade, not open in time of peace." Different 
memorials were presented to Congress from the 
commercial cities of the Tnion, remonstrating 
with zeal and energy against this dangerous pre- 
tension. Among these was a Memorial from the 
merchants of Baltimore, which was drawn up by 
Mr. Pinkney, and was communicated by the Pre- 
sident to Congress on the 29th of January, ISOG.f 
The distinguished part which Mr. Pinkney 
took in this important discussion, and the 
thorough knowledge of the subject shown in this 
paper, together with the valuable experience he 
ha<l acquired during his former residence in 
England, induced Mr. Jefferson to invite him to 
assist in the negociations with the British go- 
vernment on this and the other points of differ- 
ence between the two countries. With this view, 
he was appointed in April, 1806, jointly with Mr. 
Monroe, (then the minister resident of the United 
States in. London,) as minister extraordinary to 
treat with the British cabinet on those subjects. 
He, therefore, once more left his professional 
pursuits, and embarked with his family for Eng- 
land in May, and on his arrival immediately pro- 



Vol. VIII. No. XV. April, 1806. t See Part Second, No. II. 



[ 51 ] 

ceeded, in conjunction with Mr. Monroe, to 
execute the duties confided to them. 

Some time after his arrival in England, Mr. 
Pinkney received from his friend, Mr. Cooke, a 
letter informing him that his motives in accepting 
this appointment had been subjected to much 
misconstruction. The following answer to this 
letter will show in what manner he justified his 
eonduct. 

" London, October 5tk, 1 80G. 

" My Dear Sir, — I am very much indebted to you for your 
truly kind letter of the 4th of August, which has just reached 
me. It contains the best proof in the world of your good 
opinion and regard. It speaks to me with candour, and, at the 
same time that it betrays the partiality of a long-tried friendship, 
guards me against the disappointment to which a sanguine and 
credulous temper might expose me, and enables me to anticipate 
in season the misconceptions and calumnies which are preparing 
for me. This anticipation is certainly wholesome ; but it is un- 
pleasant, notwithstandmg The language of reproach is new to 
me, and I fear I shall not easily learn to bear it with a good 
grace from a country which I have ardently loved and faithfully 
served with the best years of my life. The consciousness that 
I do not, and cannot deserve it, consoles me in one view, while 
it mortifies rae in another. I am proud of the unqualified con- 
viction of my heart and understanding, that 1 am incapable 
of any thing that an honest man should blush to avow ; but it 
gives me pain to find that no purity of motive, or integrity of 
conduct, can afford shelter in this world from the vilest and most 
disgusting imputations. Our country is young, and ought to be 
generous and charitable ; and I believe that the great bulk of our 
people are so. But I do not neea to have my actions charitably 
interpreted. I ask only a. just construction of them ; 1 care not how 
rigorous, if it be not malignant. It seemed natural to suj-pose, 
that putting former character out of the question, the circum- 



[ 52 ] 

stances under which I last came abroad would at least secure me 
from the suspicion of selfish views and time-serving policy ; and 
I am, of course, surprised that a man can be found to inferj from 
my acceptance of the arduous trust, in which I am now engaged, 
* that I have deserted my principles and my friends, and pledged 
' myself to support the party in power and their measures to 
'every extent.' What principles, in God's name, and what 
friends have I deserted ? The plain matter of fact is thus : A 
great national crisis occurs, which requires, or is supposed to 
require, an extraordinary foreign mission. The President, whom 
I might be said to know only by character, offers this important 
charge to me. I give up my profession. I surrender all my 
hopes of future fortune. I forego a second time, and for ever, 
the expectation of placing my numerous and helpless family in a 
state of independence, and accept this anxious trust, which, in- 
stead of promising pecuniary emolument, is likely to bring with 
it a heavy pecuniary loss, and which, so far from promising to 
do me honour, puts in hazard the stock of reputation I have be- 
fore acquired. Now what abandonment of principle is there in 
all this ? I am willing to admit that I may have acted improvi- 
dently, as regards myself and my children, and that I may have 
overrated my capacity, and undertaken a task to which I am 
not competent. But I am quite sure that I have not deviated 
from that path of honour in which, with an approving con- 
science, I have walked from my boyish days. My appointment 
is known to have been as completely unsolicited as ever appoint- 
ment was from the beginning of the world. It came to me 
wholly unsought. It is to the credit of the government that it 
did so. It came to me unclogged by any terms or conditions. 
They who talk of a pledge on my part, as the consideration of 
it, know that they insinuate a base and "'detestable falsehood. 
No such pledge, no pledge of any kind, was ever proposed to 
me. I was treated with honour, and delicacy, and confidence ; 
and I have a firm reliance that I shall continue to be so treated. 
An attempt to treat me otherwise would drive me in a moment 
from office, as it would have prevented me from accepting it. 
As to this pledge, the slander is too gross to be believed. I 
have an intimate persuasion, founded upon a consciousness 



[ 53 J 

which I cannot mistake, of integrity without blemish, that no 
man would undertake to suggest to me so vile and infamous a 
compact as the price of public station. The acceptance of my 
appointment may, indeed, imply a pledge ; and I am content 
that it shall be taken to be as large as honour will permit. In 
its utmost size, whatever that may be, I will faithfully redeem it, 
and should be ashamed to have it supposed that I could shrink 
from a duty so pressing and obvious. The foolish, and often 
hypocritical cant about apostacy and desertion of principles, 
shall not frighten me from the steady and manly course to which 
this duty directs me. I have never professed any principles with 
which my present situation, connected as it unquestionably is 
with the great interests of my country, is in the slightest degree 
inconsistent. I find nothing in the objects of it, in the means by 
which I am instructed to accomplish those objects, or in the 
measures of the government preparatory to the mission, which I 
do not entirely approve, and have not uniformly approved. 

" As to the friends I have deserted, who are they ? I accept- 
ed my appointment, as far as I could ascertain, with the entire 
concurrence of my friends of all parties ; and I rejoice that I 
have friends of all parties. It was that flattering concurrence 
which encouraged me to hope that the anxiety inseparable from 
my undertaking would not be aggravated by unjust and unfeel- 
ing prejudices, and that I should have no difficulties to struggle 
with, but such as I should find here. The affection of many of 
my friends induced them to express their fears that, as an indi- 
vidual, I should suffer by the mission. But they -did not conceal 
their approbation of my appointment, and did not intimate that 
any but prudential considerations ought to restrain me from ac- 
cepting it. I have since been frequently consoled by the recol- 
lection of this, the most interesting period of my life. 

" I beg your pardon for all this egotism. But your letter has 
affected me, and I have obeyed the impulse of my feelings, con- 
sidering myself as writing to you only, and that my letter will not 
be seen by many others. 

" Upon the idle or malicious observations at Philadelphia and 
New-York, (the source of which I will not at present give my- 
self the trouble to conjecture,) I have no remark to make. I 

8 



[54] 

tliank you sineerely for placing that subject in its true light. 1 
will only say that 1 am not Mr. Chase's enemy, although in re- 
turn for unwearied services and a zealous attachment of more 
than twenty years, during which no discouragements could drive 
roe from him, he has lately been induced to act as if he were 
mine. Ingratitude is a harsh word, and they who have ventured 
to apply it to me, should first have been sure of their facts. 
They will, I presume, take care not to force such observations 
too much upon my notice. 

" Your fears upon the subject of the non-importation act of 
Congress are unfounded. It has, at no time, produced any 
bad effect here. It was, undoubtedly, a wise and salutary 
law. Such was my opinion of it at the time, and the event has 
proved that opinion to be jusl. Mr. Fox's illness and death have 
retarded us, but the prospect is good, nevertheless. Whether 
the country is likely to be satisfied by the result of our labours^ 
must depend upon the nature and extent of their expectations. 
The state of Europe and the world has a title to be considered. 

" Lord Howick (Mr. Gray) is now at the head of the Foreign 
Department; but Lords Holland and Auckland will go on with 
us, and it is hoped that we shall soon bring the negociation to a 
conclusion. Lord Auckland is, however, absent from town for a 
few days, and Lord Holland is prevented from meeting us until af- 
ter his uncle's funeral. The subjects are all difficult and delicate. 
The commercial subject is undoubtedly so, but not on account of 
any intricacy belonging to it. 

j' I have been received here in a very flattering manner, and 
the best dispositions have been and continue to be manifested to- 
wards the mission, and our country and government. You will 
perceive by the newspapers that Captain Whitby is returned in 
the Leander, and is to be tried by a court martial. The continent 
has resumed its warlike attitude — but I will not fatigue you with 
news which will probably be stale before my letter reaches you. 
The British conquest of Buenos Ayres is an important event. 
It cannot be favourable to us, however. The intercourse with it 
will be regulated by the old principle of monopoly, and Great 
Britain will hold fast upon it if she can. It is even probable that (al- 
though Sir H. Popham is said to have undertaken the expedition 
without proper authority) an extension of this conquest, to- 



[55] 

gether with other enterprises against Spanish America, will be 
attempted. The conquest is an extremely popular one. The 
treasure brought home in the Marcissus, and the immense expor- 
tations of British goods to Buenos Ayres which have followed 
the knowledge of its surrender to the British arms, have had a 
wonderful effect. 

" Lord Lauderdale is still at Paris, although Buonaparte and 
Talleyrand, and even Clarke (who with Champagny negociated 
with him) have left it ! The situation of the continent is more 
aoubtful than at any former period. Another crisis so near to 
the last, and of a character so decisive, was hardly to be ex- 
jjected. If Prussia ventures to measure swords with France, 
(and it seems now to be certain that she 7nust,) Russia will assist 
her ; but Prussia, with Saxony and Hesse, must stand the first 
onset, which promises to be terrible. Austria cannot long be an 
idle spectator, and she is well prepared to act with effect. Her 
forces are recruited, and their discipline improved. Sweden will 
aid the power that was so late her enemy. The magnanimous 
king of that gallant nation has a spirit far beyond his means. 
Great Britain and Prussia seem to be restored to a good under- 
standing. The blockade, which arose out of the subserviency of 
Prussia to the views of France, has been raised. Jacobi is on 
his return to this country, and Lord Morppth talked of here for a 
mission to Berlin. The most perplexing circumstance in the 
present picture of the continent, is the stay of Lord Lauderdale 
at Paris. Upon what basis can G. B. negociate with France in 
the present conjuncture of affairs? The ?/^» possidetis (with the 
restoration of Hanover to its lawful sovereign) sounds well ; but 
a separate peace with France upon any terms, at a moment when 
the continent may be said to be in its last agonies, and taking 
courage from despair, is about to make its last effort for life and 
independence, would be a strange spectacle. I have no belief 
that it is possible. I have been incredulous from the first. 

" I have been restrained from writing to ray friends generally 
since my arrival here, by the consideration that I could not write 
freely, and that the appearance of reserve in letters not invited 
'by them, would be worse than absolute silence. I hope soon to 
hear from several of them, and will then write. I cherish an 



[56] 



aftectionate remembrance of Baltimore, which nothing can ever 
impair." 



I have thought proper to insert the following ex- 
tracts from various communications vs^hich passed 
between Mr. Monroe and Mr. Pinkney, during 
their joint negociation, as illustrative of peculiar 
traits of character, and throwing occasional light 
upon some of the passages of the times, and also 
showing the mutual confidence and friendly feel- 
ings which subsisted between these eminent per- 
sons.* 

From Mr. Pinkney to Mr. Monroe. 

" My Dear Sir, — General Lyman has met with a Captain 
Warrington, of the Patty (of Philadelphia,) who in his voyage 
from Philadelphia to Amsterdam, was spoken by the Leander^ 
and had conversations with Captain Whitby, and a Lieutenant 
on board the Leander. The Lieutenant admitted distinctly that 
the Leander was not more than two miles from the shore at the 
time of the shot which resulted in Pierce's death — and that the 
shallop was about a mile nearer the shore than the Leander ; but 
he appears to have declared further, <Aa< t?ie shot was not intended 
for the shallop. \ 

*• General Lyman is desirous to know whether the deposition 
of this captain might not be useful. As this subject is entirely 
yours, I would not undertake to determine or give any directions 
upon it ; but at General Lyman's request write this note. He 



* Mr. Monroe has had the goodness to furnish the editor with an expla- 
nation of such parts of these papers as could not be made intelligible by a 
mere reference to the printed collection of State Papers. 



[57 ] 

will, of course, expect your opinion and directions with as little 
delay as possible, as the captain wishes to depart immediately. 

" I have not thought myself justified in calling, without you, 
to make inquiries after Mr. Fox's health, but it is understood 
that he mends. If I do not see you soon, I will seek you at 
Low Layton. I hope, however, to meet you to-day at Sir 
Francis Baring's. 

Blake's, Jermyn-street, July 1. I am, &c. 

" P. S. I have taken a temporary house in Baker-street, No. 
46, and shall be in possession to-morrow morning." 



From Mr. Monroe to Mr. Pinkney. 

" Portland Place, July 17, 1806. 

" Dear Sir, — I have the pleasure to enclose you a copy of a 
paper which I propose presenting at a proper time to Mr. Fox.* 
I will thank you to examine it, and to suggest any alterations 
which may appear to you necessary to be made in it. The 
outrages which were committed at the same port in 1804, by 
the same vessels, under other commanders, as is presumed, in 
both cases, are not noticed in it. It has seemed probable to me 
that if 1 connected the two cases, the pressure in regard to the 
last one might be weakened : that it is better to single that out 
for immediate example, and touch the other in conference, or by 
a special explanatory note, if necessary, hereafter. I am not 
decided in this opinion, and only suggest it for your considera- 
tion ; we will confer on it to-day when we meet. 

" I gave notice to the keepers of the Parks on Sunday last of 
your office and privilege in that respect." 



* A note on the subject of the outrages committed off the harbour of 
New- York by Captain Whitby, commanding a squadron of British vessels. 



[58] 

Mr. PiNKNEY to Mr. Monroe. 

" Dear Sir, — I send you enclosed a copy of the B. project on 
Impressment.* 

" It has just occurred to me that we have not answered the 
letter respecting Sir H. Hoskyns' memorial lately sent to us ; 
and as it may save you trouble, I have written (but in great 
haste, and with a very imperfect recollection of the memorial 
which you have ;) a letter in reply, which I beg you either to 
adopt, amend, or reject entirely, for any other, that upon looking 
at the papers may appear to suit the case." 

From the same to the same. 

« Thursday, Nov. 5, 1806. 

'' My Dear Sir, — I send herewith enclosed the hasty sketch 
of an article on the subject of Compensation. I send also the 
amendments which it is presumable the project of the British 
Commissioners will require. 

" I do not send an article on the subject of an open trade with 
the West Indies, because they are not likely to agree to such a 
trade ; but you will find the exception as to that trade, which I 
suppose the 9th article must be subjected to. 

" I have suggested a provision in the 12tht article as to Contra' 
band on return or resumed voyages ; but I have some recollec- 
tion that you have prepared one which I entirely approved. 
The amendments I propose to the other articles you will see 
upon examining the paper itself." 

From the same to the same. 

" Great Cumberland Place, Nov. 4, 1806. 
" Dear Sir, — I regret very much that Sir John NichoU has 



* See Waite's State Papers, vol. VI. p. 324. 

t The S>th article of the Treaty as finally agreed on. Waite's State Pa- 
pers, p. 357-358. 



[59] 

been applied to for such a paper as Lord Auckland enclosed to 
you.* Shallow as it is, I think it increases the necessity to be 
very firm and positive on our side on the point to which it relates. 
There must be some end of this question. 

" I am extremely sorry that I happen to be engaged to- 
morrow evening, so as to make it impossible for me to be of 
your party at dinner. I shall take care to be at home when you 
call to-morrow. I perceive that half-past one is the time when 
we are expected." 

From Mr. Monroe to Mr. Pinkney. 

" Dear Sir, — I have the pleasure to send you a note froni 
the British Commissioners in the sense suggested by them in 
their last interview.t It appears to be drawn with great atten- 
tion to the object, and to be as free from objection as any paper 
they can draw, which does not answer our purpose. If you 
think so, nothing need, as I presume, be said to them respecting 
it. 

" I am engaged in the letter to the Secretary of State, which 
I hope to finish, on the plan it is commenced, to-day.| Yours, 
sincerely, J. M. 

Nov. 9, 1806. 

" I send you a note from General Lyman, which shows that the 
omission to send you an invitation to the Lord Mayor's feast 
was owing to the cause I had supposed. I shall be forced to de- 
cline going, on account of the early departure of the vessel by 
which we shall send our despatch, which, however, will not sail 
till Tuesday." 



* A report from Sir John Nicholl, King's Advocate General, justifying 
the British practice of impressing seamen on board of neutral vessels upon 
the high seas, on the ground that the King has a right to require the service 
of all his sea-faring subjects, and to seize them by force, wherever found, 
unless within the territorial limits of another power 

t Upon the subject of Impressment. Waite's State Papers, vol. VI, p. 339. 

t Waite's State Papers, vol. XI. p. 320. 



[ 60 ] 

From Mr. Pinkney to Mr. Monroe. 

" Dear Sir, — The note of the B. Commissioners is as satis- 
factory as it could be made. I think it does not require any 
answer. 

" If you do not go to the Guildhall dinner, I shall of course 
make an apology. I really do not wish to go." 

From Mr. Monroe to Mr. Pinkney. 

" Dear Sir, — I have just received the enclosed from Lord 
Holland, which I regret was not directed to us both. I should 
express that sentiment to him, but that it might induce him to 
suppose there was some etiquette between us. Though an in- 
formal paper, it is a very interesting one on a public subject.* 

" On the first point, the answer seems to be, that we shall of 
course claim the same jurisdiction of other powers that is agreed 
on with G. Britain, or be answerable to her for a departure from 
in her favour. To the other, no answer is now expected. To 
me, however, it appears best that I should reply that we will con- 
sult together on both, and as it is his intention that we should 
meet on Friday or Saturday, that we will be prepared to commu- 
nicate to him then freely our sentiments on both points. I will, 
however, do whatever you think best, and am very sincerely 
yours. 

November 14, 1S06.'' 

From Mr. Pinkney to Mr. Monroe. 

" Dear Sir, — I think the course will be as you suggest — that 
you should write such an answer to Lord Holland as you 
menti(m." 



* This note of Lord Holland to Mr Monroe, related to jurisdiction on 
our coasts. He asked whether we could support it to the same extent 
against France. It also related to the duties on British manufactures, and 
inquired whether we would give a preference to those of Great Britain in 
return for other commercial advantages. 



[ 61 ] 

From Mr. Monroe to Mr. Pinkney. 

^•' Dear Sir, — I have this moment received the enclosed ia- 
Jbrmal note from Lord Hoiland, which is quite vague and inde- 
terminate on our business. It is very discouraging, after what has 
passed, to find ourselves in this situation. I am really quite pre- 
pared to give a new character at an early period to the ne- 
gociation. However, on this point, we will confer before the 
next meeting, and it is to be hoped that the decisive conduct of 
those persons in it, will make an appeal to any other than the 
motives which have hitherto prevailed in the negociation un- 
necessary. * * * * 

" Portland Place, Monday evening , 17th Nov." 

From Mr. Pinkney to Mr. Monroe. 

" My Dear Sir, — To-morrow is, I think, the day appointed for 
meeting the B. Commissioners. I will call for you in my car- 
riage before eleven. The article in the Courier of to-night, is a 
very curious one on the subject of our nogociation. 
_" Yours ever and truly, 

" Fridmj night, 5th Dec. 1806. Wm. Pinkney." 

From Mr. Monroe to Mr. Pinkney. 

" Portland Place, February lUh^ 1807. 
" My Dear Sir, — I have the pleasure to enclose you a letter 
which I have just received from Lords Holland and Auckland, 
announcing their authority from their government to pursue the 
objects which remain to be settled between the two countries.* 
They propose a meeting on Saturday or Tuesday next, as may 
best suit us. If you have no objection, I should prefer the earliest 
day. Will you be so good as to give an answer to that effect ? 



* The subjects of Boundary, aod Navigation of the Mississippi, Indian 
trade, compensation for spoliation, which had not been included in the trea- 
ty signed on the 1st December, 1806. r 



[62] 

Perhaps it may be well to PX|;ress some satisfaction that his 
Majesty has thought fit to commit this additional ti list to chaiac- 
ters in whom we so much confide, or with whom we have been 
happy to have been connected in the late negociaiion — though 
in that do as you think best.* 

" Do you a'.d Mrs. Pinkney go to the court to-morrow ? In 
case you do, we will have the pleasure to call for yon. at one 
o'clock, if you approve that hour. We probably suffered by be- 
ing too late tlie last drawing-room." 

From Mr. Pinkney to Mr. Monroe. 

" Monday night. 

'' My Dear Sir, — I am extremely sorry that I was out when 
you were so good as to call. W. shall copy your project, which 
I have not yet read ; and if I should think it worth while, my 
draft of an article, as a substitute for the 5th in the Convention, 
shall be copied also for consideration. 

" I shall be happy to see you at any hour in the morning after 
ten. It may, pt-rhaps, be well lliat we should have an hour to- 
gether before we go to our Conference." 



^ It may not be improper to observe tliat the Editor has been assured from 
the highest auihoritv , that the British Commissioners, during the whole 
course oi these negociations, showed the most candid and ronciliator^ dis- 
position, at the same time that they were duly attentive to the interests of 
their own country. That amiable and accomplished nobleman, Lord Holland, 
it is well known, cherishes for tliis country and its free institutions, those 
feelmgs of kindness which lie imbibed from his illustrious relative, Mr. 
Fox, and which we may be allowed to believe have been confirmed by 
his own enlightened jiid^'nient. Lord Auckland seemed also desirous by a 
concilirttory deportment to remove any unfavourable impressions which 
might have been taken np against hiui during the wav of our revolution, 
wthout howevei, adverting, on any occasion, to the transactions of those 
times. The British negociators were, however, in the hands of their govern- 
ment, whose orders they obeyed ; and it is well known that the cabinet it- 
self was made up of fragile and discordant materials, all its proceedings 
being looked upon with extreme jealousy by the opposition of the day. 



[63] 



From the some to tJie same. 

"My Dear Sir, — Enclosed is our project on the subject of 
Boundary, The 5th article is modelled upon Mr. King's con- 
vention, with a little of the phraseology of your plan introduced 
into it. The (ith relates to Grand Manan.* 

" Be so good as to examine tiie tw»j last, and mould them into 
any oth'T shape that you prefer. The day has been so forbid- 
ding that I have not ventured out." 

From the same to the same. 

^'February 23, 1807- 
" My Dear Sir, — W. has nearly finished copying the note to 
Lord Holland and Lord Auckland. It remains as it did when 
I had the pleasure to see you, and will, I think, do very well in 
that form. I have not been able to accommodate what I struck 
out of the note in its first shape to the ideas latelv suggested ; 
and 1 hardly think it worth while to make another attempt. Any 
thing, however, that you think will improve it, shall be added ; 
and if you believe that any thing more is necessary, I beg you to 
have the goodness to write it, and to mark the place where it 
shall be inserted. I send you my draft, and W.'s copy so far as 
it goes, which, I think, is as far as the end of your amendment. 
Be so good as to let me have these pretty early to-morrow, (be- 
tween ten and eleven o'clock,) and the copy shall be completed 
for our meeting on Thursday, with the B. Commissioners. Will 
you take the trouble to call for me on Thursday ?" 

From Mr. Monroe to Mr. Pinkney. 

" My Dear Sir, — I have this moment received the enclosed 
from Lord Auckland, by which I find with surprise that we 



* See VVaite's State Papers, vol. vi. p, 387-399. 



[ 64 ] 

were expected at his office yesterday by hira and Lord Holland. 
I read his note to me as you did, and we are therefore not to 
blame for the omission. 1 am going to call on Lord Auckland 
with Colonel Humphreys about two, and will come by for you 
in my carriage if you will be so good as to accompany us ; it 
will furnish an opportunity for making an explanation without 
form. 

" I will bring our note about indemnities, which I think we 
shall easily arrange, and very satisfactorily, by leaving out one 
paragraph, and making one or two modifications which I will 
explain." 

From Mr. Pinkney to Mr. Monroe. 

" My Dear Sir, — I send you our letter,* with a copy of our 
letters to Lord Howick, and Lords Holland and Auckland. 

The other letter (on the subject of the supplemental Conven- 
tion) will be ready to-morrow or next day, and may be sent 
(together with a duplicate of this, which I will have prepared) 
by the Shepherdess.t I propose to date the other letter of the 
25th of April. W. will make a copy of Mr. Canning's last note 
to us, if you will allow him, for the purpose of being enclosed." 

Frojn the same to the same. 

" May 7, 1807. 
'•' My Dear Sir, — I enclose a short letter to Mr. Madison 
acknowledging the receipt ot his letter of the 1 8th of March, and 
transmitting Mr. Murray's statement of cases for hearing before 
the Lords of Appeal. Of this paper I have retained a copy. 



• Mr. Pinkney and Mr. Monroe's joint letter of the 22d April, J807, t» 
the Secretary of State Waite's State Papers, vol. ri. p. 378. 
\ ^Vaite'8 State Papers, vol. vi. p. 387 
$ Waite's State Papers, vol. vi. p. 400. 



[65] 

'•' I enclose a letter of my own, which I beg you to have the 
goodness to send with the other, if by the Shepherdess.^' 



It is well known that before the above nego- 
ciations were brought to a termination a change 
took place in the British cabinet which brought 
Mr. Canning into the Foreign Office ; and the 
misunderstanding between the two countries was 
still further increased by the attack on the frigate 
Chesapeake, by the British frigate Leopard, in 
June, 1807. The new cabinet having determined 
to send a special minister to the United States, 
who, it was supposed, would also be authorized to 
adjust the other subjects of difference, Mr. Monroe 
was anxious to avail himself of this opportunity 
of returning home, and of leaving Mr. Pinkney in 
London, in charge of the affairs of this country, 
as minister resident. The difficulties which 
opposed this arrangement in the mind of Mr. 
Pinkney, and the motives by which his scruples 
were finally overcome, are explained in the fol- 
lowing correspondence. 

Mr. PiNKNKY to Mr. Monroe. 

" Great Cumberland Place, Friday, October 2, 1807. 
" My Dear Sir, — I think, upon reflection, that I ought not to 
go to Downing-street to-morrow for the purpose suggested in our 
conversation of this afternoon. I have certainly no public cha- 
racter here but that of Commissioner Extraordinary and Pleni- 



[ 66 ] 

potentiary, of which the functions, as defined in our joint cOna- 
mission, are different from those of a mere Minister Plenipoten- 
tiary. My eventual appointment; of the 12th of May, 1806, as 
your successor in the ordinary legation, being the act of the Presi- 
dent alone, could only be in force (as the commission itself very 
properly states) until the end of the session of the Senate next 
following its date. The letters of credence, it is true, do not 
contain the same express limit which is to be found in the com- 
mission ; but the constitution of the United States creates it as 
effectually as if it were declared in the letters themselves. If I 
should request to be considered here as the general minister of 
our country, I could not refer that request to any authority from 
our government ; but should be obliged to disclaim such autho- 
rity at the very time of making the request. My evident want 
of power could only be supplied by you ; but that would in sub- 
stance (let the mode of doing the business be what it might) have 
the inadmissible effect of making me a Charge d^Affaires. 

" I am persuaded, therefore, that I cannot, with propriety 
seek to have any concern, without the further orders of the go- 
vernment of the United States, with such of our affairs here as are 
not within the scope of the special mission ; although I feel no 
want of confidence that it would not be disagreeable to the Pre- 
sident that they should be left in my hands upon your departure, 
notwithstanding that my commission has not been renewed, and 
that one of the most important of the subjects confided to our 
joint care, has recently been withdrawn, with a view to the pub- 
lic advantage, from the special mission, and confided solely t© 
you." 

Mr. Monroe to Mr. Pinkney. 

" My Dear Sir, — I have the pleasure to enclose you some notes 
which I have just received from Mr. Canning and Sir Stephen 
Cottrel, which communicate the arrangement made for my pre- ' 
sentation to the King to-morrow, for the purpose of taking leave 
of him. I send you also a sketch of a note which I propose 
carrying with me to Mr. Canning, which is intended to transfer 
the business in my hands over to you. As it is my wish to form. 



[67 ] 

this note in the manner best adapted to the object, and most 
agreeable to you, I hope you will be so good as to make any 
correction in it which you think proper." 

From Mr. Pinkney to Mr. Monroe 

" Mv Dear Sir, — I see no objection to the terms of the note 
which you propose to leave with Mr. Canning. I take into con- 
sideration, however, that the subject will be explained in detail 
to Mr. Canning in your interview, and particularly that the letter 
of credence to the King will be shown to him. It is only in 
case this arrangement shall be found to be perfectly acceptable 
to the British government, that I presume the note will be left. 
In any other view the appointment of a mere Charge d' Affaires 
will be the best course, and it is one to which I have not the 
slightest objection. 

" I beg you to be assured that I have the utmost confidence, 
that you wish this affair to be made as satisfactory as possible to 
me — and that I have, on every occasion, a perfect reliance upon 
your friendship." 

From the same to the same. 

" My Dear Sir, — I did not happen to be at home when your 
note of this morning was brought here, and I have sincie my re- 
turn been so much interrupted, that I could not send to you until 
this moment. 

" I suppose it will be proper, and perhaps indispensible that 
an account (very brief indeed) of the transactions of the joint 
mission should go to the United States by the Revenge. You 
will find in a sketch now enclosed, what I have beheved to be 
sufficient. If you approve, or will have the goodness to correct 
and add as you see occasion, and will then send it to me, I will 
have it copied to-night, and it may be signed, &c. early in the 
morning. I have copies prepared of all the enclosures, except 
only the project of alterations left with Mr. Canning. This you 
have, and if you will send it to me, I will have that copied also. 



[68 ] 

'• The arrangement with Mr. Canning relative to myself, I have 
not mentioned in our joint letter. You will, of course, explain 
that to Mr. Madison, and I shall do so likewise. My letter to 
Mr. Madison 1 will send lo you to-night, or to-morrow morning, 
and I beg of you to prevail upon Dr. BuUus to take charge of it. 

" 1 return enclosed (with my signature) the letters to General 
Armstrong and Mr. Bowdoin, of which W. has taken copies to 
be transmitted with our joint letter to Mr. Madison. I enclose 
also copies of your note to Mr. Canning, and his reply upon my 
subject — which I presumed you wished, for the purpose of being 
transmitted in your own despatch. The originals I will give you 
to-morrow." 

From Mr. Pinkney to Mr. Madison. 

"Private. London, October 10<A, 1807. 

" Dear Sir, — Mr Monroe will, doubtless, sufficiently explain 
the subject of this letter ; but it seems, notwithstanding, to be 
proper that I should trouble you with a very brief explanation of 
it myself. 

" This government having determined to send a special envoy 
to the United States upon the subject of Mr. Monroe's late in- 
structions, and it being probable (although not avowed) that this 
envoy would have ulterior powers to treat upon al' the topics which 
affect the relations of the two countries, Mr. Monroe expressed a 
wish to return without delay to the United States and to leave 
with me the affairs of our country in quality of Minister Ex- 
traordinary and Plenipotentiary. So far as respected the busi- 
ness (if the ordinary legation, there was, undoubtedly, a difficul- 
ty of form, if not of substance, in the way of its coming into 
my hrinds in any other thnn the inadmissible character of a mere 
Char -^ :l^ Affaires. My credentials as Mr Monroe's successor, 
expired with the session of the Sfenate next following theii date, 
and had not been renewed : and my commission as Minister Ex- 
traordinary gave only limited powers for specified objects. It 
apjjeaied to be my duty, however, in case it should not be unac- 
ceptable to the British government to communicHU* with me in 
the event of Mr. Monroe's departure as if I were regularly ac- 
credited as the Minister Plenipotentiary of the United States, to 



[69] 

consent on my part to such an arrangement, as being more eli- 
gible in the present conjuncture thin the appointment of a 
Charge d^ Affaires. iMr. Monroe accordingly wrote, with my ap- 
probation, a note to Mr (^anning to th;it effect, to which some 
personal explanations were added, and received a reply, of which 
a copy is enclosed, adopting the arrangement proposed. 

" You will perceive that, in lending myself to this step, I have 
ventured to infer the approbation of the President from what 
certainly does not express it. ft w >uld have been much more 
agreeable to me that a Charge d"" Affaires should be left, and 
that I should remain in my character of Commissioner Extra- 
ordinary until the government of the United States should have 
an opportunity of taking its own course. In that mode I should 
have been relieved from all embarrassment ; but thinking that the 
public interest required the course actually adopted, and that 
it was, moreover, that which was likely to fulfil the expectations 
of the President, 1 did not consider myself at liberty to consult 
my own inclinations. 

" The conclufiing expressions of Mr. Canning's note afford me 
an opportunity of saying that, in awaiting here the orders of the 
President, I am ready to return or to remain, as he shall think the 
interest of our country requires. I beg you to be assured that 
as 1 accepted the trust which called me abroad with no selfish 
motive, (although 1 felt how much I was honoured by it,) I should 
regret that any indulgent feeling towards me should in any de- 
gree restrain the President from promoting, in the way he thinks 
best, that which I know is the constant object of his care — the 
general good. Neither the unfeigned veneration in which I hold 
his character, nor the grateful recollection which I have not for 
a moment ceased to cherish of the manner in which he has been 
so good as to distinguish me, will suffer any abatement, although 
he should think fit to place some other than myself in the sta- 
tion which he once destined for me. I am quite sure that, what- 
ever shall be done, the manner of it will be liberal and kind ; 
and trusting, as I do most confidently, that I shall carry out of 
the public service, leave it when I may, the pure name with 
which I entered it, and the unabated good opinion of the govern- 
ment I have been proud to serve — the rest is of little importance." 

10 



[ 70 ] 

The signature of the articles of a treaty on 
the 31 St of December, 1806, had been accom- 
panied by a declaration of the British Com- 
missioners, in which they asserted, on the part of 
their government, the right to retaliate upon neu- 
tral nations the decree of blockade issued by the 
Emperor Napoleon at Berlin on the 21st of the 
preceding November, and stated that the signa- 
ture of the proposed treaty must not be consider- 
ed as precluding the exercise of that right, in 
cg^e the enemy should not, before the treaty w^as 
returned from America w^ith the ratification of 
our government, have relinquished his preten- 
sions, either formally or tacitly, or the United 
States, by their conduct or assurances, should 
not have satisfied the British government that it 
would not submit to the decree. This declara- 
tion was almost irmnediattly followed by the Or- 
ders in Council of the 7th of January, 1807, in 
which neutrals were prohibited from trading from 
one port to another port, both of which ports 
should belong to, or be in possession of France 
or her allies. This measure, although it profess- 
ed to be in retaliation of the Berlin decree, was 
in substance an extension of the blockade which 
ha<l been notified on the 16th of May, 1806, of 
the coast, rivers, and ports from the river Elbe to 
the port of Brest, both inclusive, which was so 
qualified as merely to interdict the trade from 
port to port within those limits. 



[ 71 I 
These extraordinary measures of France and 
Great Britain, together with the attack on the 
frigate Chesapeake, seemed to threaten the 
United States with the imminent danger of being 
involved in the European war. But Mr. Pinkney, 
in a private letter to Mr. Madison, dated the 13th 
of August, 1807, in which he speaks of the Pre- 
sident's Proclamation relative to the recent out- 
rage in our seas, states that the proclamation was 
approved in England, and had evidently produced 
the best effects — and that there was no room to 
doubt the disposition of that government to peace 
and atonement. This prospect was soon to be 
clouded by the Orders in Council of the 16th of 
November, 1807, and other subsequent orders, 
prohibiting all neutral trade with ports of France 
and her allies, or of any other country at war 
with Great Britain, and of all other ports in Eu- 
rope from which the British flag was excluded, 
unless such trade should be carried on through 
the ports of Great Britain, under her licenses, 
and paying duties to her exchequer. The view 
which Mr. Pinkney took of this alarming state 
of affairs, will be seen by the following extract 
from his private letter to Mr. Madison, of the 7th 
of December, 1807. 



" Some American vessels have been warned under the orders 
of council, and permitted, after coming in, to proceed on their 
voyages, which, however, must now be full of danger. 



[ 72] 

*■' There is every probability that Sweden will, either willingly 
or unwillingly, soon unite with Russia in her measures against 
England ; Austria is already said to be a party to them. The 
United States alone remain ; and, as if it was desirable to cast 
off the friendship of all the world in this hour of their greatest 
peril, the British government persecutes us with the most inju- 
dicious, wanton, and extravagant aggression that ever was ven- 
tured uj)on by a nation in the arrogance of prosperity, and in 
the fullness of unquestioned power. I lament to say that this vile 
measure continues to be more popular than it ought to be. Most 
of the opposition with whom 1 have lately conversed, arraign it 
as foolish, raiher than unjust ; but in general it is approved. A 
portentous delusion seems to have taken possession of the nation. 
It was to have besn expected that the affair of Copenhagen 
would have alarmed a moral and intelligent people by the prodi- 
gal waste of national character which it could not fail to pro- 
duce, as well as by the horrible violence which it offered to every 
thing like principle, and even to the ordinary maxims of pohcy. 
It has, however, scarcely excited a murmur. It is, indeed, under- 
stood, that it will be assailed in Parliament by the late ministry 
and their adherents, except Thomas Grenville, and, perhaps, 
Lord Grenville It is oqnally understood that this attack will 
end in nothing. If Lord Grenville should (as some assert, 
though I incline to think erroneously) support the Copenhagen 
business, it is believed that it will be the signal of his separation 
from a party with which he never has been cordial, and of an 
approaching union with the present ministers, who are said to 
desire extremely to bring Lord Grenville and the Marquis Wel- 
leslcy into office. 

" Since my letter of the 23d of last month, Mr. Bowdoin has 
put into my hands a copy of a letter from the French Minister of 
Justice, to the Procureur General of the Council of Prizes, dated 
the 18th of September last, with which General Armstrong has 
doubtless made you acquainted. I enclose a copy of it* 



* This rescript gave a d'.flerf nt interpretation to the Berlin decree from 
what the rouiiLil of Prizes liad .it first given to it, when they had considered 
it as a mere municipal regulation, forbidding the entry of neutral vessels 



[ 73] 

•' It is pcifcetly certain that the British government had no 
knowledge of this paper, when the Orders in Council were is- 
sued ; and indeed that they have no knowledge of it even now. 
They have heard of certain declarations imputed to the Emperor 
of France at his levees, (with what truth I know not ;) but these 
could hardly be considered as very certain indications of what 
would be done ; far less as constituting in themselves a measure 
against which there could be actual retaliation through the rights 
of neutrals, 

" The situation in which we are now placed by the violence 
and injustice of others is certainly an arduous one ; but it will be 
met by our government with all the temper, wisdom, and virtue, 
which it so imperiously requires, and by our people with the 
patriotism which belongs to them. 

" War between our country and Great Britain is not generally 
expected here. There is a disposition in many to anticipate 
some strong measure on our part, but not war ; and it is taken 
for granted that Gieat Britain will not seek a war if we should 
stop short of actual hostility. The letters in the Morning Chro- 
nicle (from A. B. to the editor) which I have sent you as they 
have appeared, are from the pen of one of the ablest and warm- 
est of our friends in England. They are not M'ithout great 
errors ; but they speak with considerable exactness the sense of 
his party, the most favourable of any in this country to the Uni- 
ted States." 



In a letter, dated the 21st December, 1807, he 
says : 

" I ought not, perhaps, to have been quite so scrupulous of 
writing to you on public affairs during the existence of the joint 
mission ; but you will do me the justice to believe that the 
scruple was sincerely felt, and yielded to frequently with great 



coming from England into French ports, and not authorizing seizures od 
the high seas of neutrals bound to or from British ports. 



[ 74 ] 

reluctance. You will now have reason, perhaps, to complain of 
rat for writing rather too much than too little. I shall, however, 
continue in general to mark my letters " private," by which 
their freedom and frequency will be rendered innocent at least, 
if they shall not be useful. 

" You will find that I have been careful to send you by every 
opportunity, newspapers, pamphlets, &c. since Mr. Monroe's 
departure ; as indeed I sometimes ventured to do before. May 
I be<i that those from the United States may be sent with more 
regularity ? I ought to remark, that a pamphlet, favourable to 
British pretensions, and decrying our own, is no pooner published 
in America than it finds its way across the Atlantic, gets into 
general circulation here, and is quoted, praised, and sometimes 
republished ; whereas those of an opposite description either do 
not arrive at all, or come too late. Some pamphlets, of a most 
pernicious kind, having a British character stronaly stamped 
upon them, have lately been imported from the United States, and 
advertised for republication by Knglish booksellers. I should 
have been glad to see the antidote accompanying the poison. I 
am a sincere friend to peace with all the world, while it can be 
preserved with honour : but the strange productions to which I 
allude not only dishonour or betray the cause of our country, 
but tend, if read in Great Britain, to produce a temper unfriendly 
to accommodation ; and thus, while they inveigh against war, 
contribute to produce it. The effect of these works is greatly 
assisted by the wonderful ignorance v/hich has prevailed, and 
still prevails, among all ranks of people in (ireat Britain, relative 
to the reciprocal conduct of France and the United States to- 
wards each other. The President's Message has, for that reason 
only, been almost universally misapprehended. Even our best 
friends have mistaken and complained of it. In the course of 
my private intercourse (as well with the opposition as with the 
friends of ministers) I have done all that was coVisistent with 
discretion, to give more correct notions on the subject ; but the 
press only can remove completely the prevailing error, and to 
that expedient it would be improper that I should have recourse. 
Some of the most distinguished men in Pagland, however, have 
been referred to General Armstrong's letter to the French Minis- 



[ 75 ] 

ter of Marine, and the answer of that minister, as published iii 
the American newspapers during the last winter, and to our Con- 
vention with France, and rnay, perhaps, do what I cannot. 
Their own newspapers prove in part tht- practice, (even now) 
under the French decree of November, 1 806 ; and it is well 
known to naany persons here, (notwithstanding the general igno- 
rance) that France has nev>-r acted, and does not at this time act, 
upon the parts of the decree, which might seem intended for ex- 
ternal operation, as maritime rules. 

" There are rumours of a schism in the cabinet (relative to the 
Catholics ;) but I am told by a member of the late administra- 
tion that it will come to nothing." 



In a letter to Mr. Madison, dated the 31st of 
December, 1807, he says: 

" Accounts from America begin to be regarded here with 
great interest, and to be remarked upon in rather an altered 
tone. I confess that I expect them myself with peculiar anxiety, 
although without a particle of doubt. The attitude which our 
government is now to take will fix our destiny for ever ; and my 
trust is strong and confident that both will be worthy of the high 
name of our country. 

" In my public letters, I have ventured to intimate my opinions 
as to the conduct which the crisis demands from us. You will 
excuse me, I am sure, if in a private letter 1 speak with more 
freedom. 

" It will, I sincerely hope, be the solemn conviction of every 
man in America, (as it is mine) that it has become impossible, 
without the entire loss of our honour, and the sacrifice of every 
thing which it is our duty to protect, to submit in the smallest 
degree to that extravagant system of maritime oppression, (pro- 
ceeding more from jealousy of our rising greatness than from 
the motives actually avowed) by which Great Britain everv day 
exemplifies in various modes the favourite doctrine of her in- 
fatuated advisers, that Power and Rightful Dominion are equiva- 
lent terms. 



[ 76 ] 

'• No man can deprecate war upon light and frivolous grounds 
more sincerely than I should do. But if war arises out of our 
resistance to this pernicious career of arrogance and selfishness, 
which, while it threatens our best interests with ruin, is even 
more insulting than it is injurious, and more humiliating than it 
is destructive, can it be doubted that our cause is a just one, or 
that we shall be able and willing to maintain it as a great and 
gallant nation ought to do ? 

." I have read, not without indignation, in American newspa- 
pers and pamphlets, that we are too feeble to assert our honour 
against the power of Great Britain, or to defend ourselves against 
her encroachments. This slander is not believed by those who 
publish it ; but if it were true, instead of being immeasurably 
false, there are bounds to submission, beyond which even the 
feeble can subrnit no longer. Our government has shown a lau- 
dable solicitude for peace with all the world, and has acted 
wisely in its efforts to preserve it. But the time has arrived 
when it seems to be certain that we must either yield up all 
that we prize of reputation, of fortune, and of power, to the 
naval despotism of this country, or meet it with spirit and reso- 
lution ; if not by war, at least by some act of a strong and de- 
cisive character. 

" The argument against resistance to British aggressions, 
founded upon supposed danger from France, if Great Britain 
should be greatly weakened by that resistance, proves too much, 
and is otherwise false in fact and in reasoning. Without being 
blind to the enormous power and other dangerous attributes of 
the French government, I am persuaded that we have little to 
fear from France, and that it is 'practicable (as it is most empha- 
tically our interest) to be at peace, without identifying ourselves 
with her. 

" It may be admitted, however, that France is a subject of 
apprehension to America as well as to Europe ; but are we on that 
account to suffer with patience every wrong which Great Britain, 
stimulated by the jealousy of her merchants, or the avarice of 
her navy, or the pride of conscious power, may inflict upon us r 
Such a state of abject slavery to our fears, such a tame surrender 
of our rights, as the price of British protection against possible 



[ 77] 

and contingent peril, would be a thousand times more degrading 
than if we were now in the maturity of our years to return 
openly to ihe dependence of our colonial infancy upon the 
guaraianship of the parent country. If we once listen to this 
base and pusillanimous suggestion, we have passed under the 
yoke and are no longer a nation of freemen ; we shall not only 
be despised and trampled upon by all the world, but, what is of 
infinitely "more importance, we shall despise ourselves — France 
will justly become our irreconcileable enemy, and Great Britain 
will only be encouraged and enabled to stab to the heart the pros- 
perity which she envies, and the power which she begins to 
dread. By a different cojarse, that which suits with the manly 
character and the great resources of the American people, we 
shall show that we rely on ourselves for protection. VVe shall 
maintain, with the gallantry and firmness which have heretofore 
characterized us, our station among the powers of the earth. 
We shall check, while there is yet time, the usurpations of Great 
Britain without destroying her salutary strength. We shall di- 
minish our dependence upon Europe by learning to supply our 
wants : and, while we give no cause of present hostility to 
France, we shall increase, by the necessary organization and 
development of our means of defence, our security from moles- 
tation from that and every other quarter. 

" The picture lately drawn by some American politicians of 
the sufferings which a war with Great Britain is to bring upon 
us, is such gross and ridiculous exaggerntion that it can hardly 
deceive even the thoughrlf-s? and the timid. Great Britain will 
herself feel the tremendous effects of such a contest ; and I ven- 
ture to prophecy will soon seek to.ead it ; but her late Orders of 
Council will injure us in peace as «mch as she can ever hope to 
injure us by war. 

" I have acknovvledo^ed in a postscript to my letter of the 29th, 
the receipt of your letter to jMr. i'lonroe of the 2 1st of October. 
I had read m the English newspapers, before Mr. Monroe's de- 
parture, of the trial and execution of Radford, and of the trial 
of the other three seamen, but not of their punishment.* 1 do 



"* Seamen taken in the Chesapeake. 
11 



[ 78] 

not know whether the instructions of !Nir. Rose will enable him 
to offer any suitable atonement for this consunmaation of the 
guilt of Berkeley. The principal facts were known before the 
Statira sailed, and were, perhaps, suggested by Mr. Monroe to 
this government, as calculated to influence the nature and extent 
of the reparation. At any rate, it will not now be proper that I 
should move in this affair without farther instructions. 

" The opposition in the approaching session of Parliament, 
will be extremely active, particularly in the House of Lords, 
where the late ministers have more ability than in the Commons. 
The field is ample, and the topics interesting. The emigration 
of the royal family of Portugal has caused much idle exultation 
here ; but the sober estimate now made of the advantage to 
Great Britain from that event is not quite so brilliant as the ear- 
lier calculations. 

*' It is whispered that the late schism in the cabinet, took its 
rise in a wish to bring Lord Grenville into power. He could not 
return while the Catholic question remained as he left it ; and 
hence an attempt (by Mr. Canning, as it is said) to prevail upon 
thi- King to relax upon that point. The King was inflexible, 
and the affair has dropped. 

" Mr. Rose (the Envoy) is the author of the report of the 
House of Commons, relative to the West Indies, which 1 sent 
you last summer. Mr. Percival and Lord Haukesbury are the 
reputed authors of the new blockading plan. I should suspect 
Mr. George Rose (the elder) of a gieat share in it. 

" The French government is said to have issued a new decree, 
(dated at Milan, Novenil)er 2;">th,) under which the decree of No- 
vember, 1 80G, will be executed according to its letter. 1 have 
not seen the decree, althou^^h it is in Kngland ; but it will pro- 
bably be published in the Courier of to-night, which I will en- 
close. The French decree of the ] 8th of Novembei, (dated at 
Fontainbleau,) you will see in the papers herewith sent. 
" 1 beg you to pardon this long and hasty letter." 

" Private. London, January Jth^ 1808. 

" Dkar Sir, — I enclose a duplicate of my public letter of the 
29th, and my private letter of the 31st of last month, to 



[79] 

which I am now able to add a copy of the French decree 
of the 23d (not, as I had suppospd, the 2:3th) of November. 
This was sent to me by a Mr. Mitchell, who was proceed- 
ing to the United States (as he writes me) in an Ameri- 
can vessel (the Ocean) with despatches for you from General 
Armstrong, when the vessel was captured by the Narcissus 
frigate, and sent into Plymouth, upon the ground that she took 
in a part of her cargo in France, {salt for ballast) after the day 
limited in the last British Orders in Council. I have thought it 
proper to interest myself informally in the case of this vessel, 
and I have assurance that it shall receive the promptest atten- 
tion. I have advised Mr. Mitchell to wait a iew days before he 
determines upon taking his passage in another vessel for Ameri- 
ca, by which he would be likely to lose time. 

" I sent you some days ago a newspaper containing the French 
retaliating decree, dated at Milan the 25th of December. Those 
which are now forwarded contain the same decree ; and yow 
will find by the papers of this morning that it has been followed 
up by another. This country has ventured upon an extraordi- 
nary struggle with France, by which she has every thing to lose 
and nothing to gain. The gross impolicy of the late Orders of 
Council, (to say nothing of their insulting tone, and their injus- 
tice to neutral states,) begins to develop itself, and will soon be 
manifest to all.' I am greatly deceived if it will not in a few 
weeks be matter of surprise among all descriptions of people 
here, that a manufacturing and commercial nation like Great 
Britain, could have expected any thing but disaster and ruin 
from such a measure. 

" Hopes are entertained in England, that our Non-Importa- 
tion Act will have been repealed upon the arrival of intelli- 
gence of an intended extraordinary mission from this country ! 
That law passed upon unquestionable grounds of policy and 
justice ; and, although it has been heretofore properly suspended^ 
I do not see how our honour could fail to become u mere shadow, 
if it should now be abandoned even for a time. The mission 
of Mr, Rose would not seem to justify even the suspension of 
it, until the nature and extent of his powers were known ; and 
after they were known, it could justify nothing. He has no 
power to arrange on the topic of impressment, the great founda- 



[ 80 ] 

tion of the Non-Importation Act ; and his government has not 
only re-asserted its obnoxious pretension on that subject in a 
public proclamation, but has even gone the length of declaring 
that it cannot consent to impair it. The unredressed outrages 
of Love, Whitby, &c., afford no inducement to repeal a law de- 
liberately passed, with the clear approbation of the American 
people, when all the motives to its passage have received aug- 
mented force. But the late Orders of Council would make the re- 
peal, or even the suspension, of the fSon-Importation Act par- 
ticularly unfortunate. The time when they were issued — the 
arrogant claim of maritime dominion which they suppose and 
execute — and the contempt which they manifest, in the face of 
the world, for the rights and the power uf our country, make 
them altogether the most offensive act that can be laid to the 
charge of any government. The least appearance of a disposi- 
tion to submit to such an attempt will encourage to further ag- 
gressions, until our national spirit will be lost in an habitual 
sense of humiliation, our character known only to be despised, 
and our rights considered, like those of the petty stales of Eu- 
rope, the sport and the prey of the strongest There is an opi- 
nion here, that w^ are likely to become a divided people when a 
rupture with Great Britain is in question ; but this opinion is 
founded upon such American publications as those in a Boston 
paper, signed " Pacificus," and upon some pamphlets and pri- 
vate letters of a similar character, and will, undoubtedly, be glo- 
riously falsified, if there should be occasion, by the patriotism 
of our people in every quarter of the Union. 

"Private. L.ON00N, Januari/ 10th, 1808. 

" At a meeting on Thursday last of the committee of mer- 
chants trading to the United States, a memorial to government 
on the subject of the late orders, &c., was intended to be pro- 
posed, when to prevent the reading of it and a question upon itj 
a motion was made for an adjournment by Alderman Shaw, and 
carried (I think) 1 1 to 7- 1 have not seen this memorial, (as it 
has been wished and endeavoured to prevent it from getting 
abroad,) but a copy is now preparing for me, and (if of any in- 



[81 ] 

terest) I will send it to you as soon as obtained. I shall be 
much disapjDointed if a rupture with us will not become and de- 
cidt'dly appear to be more unpopular every day Their trade 
and many of their manufactures are at a stand, and unexampled 
distress and strong remunsirances must speedily be the con- 
sequence." 

In a letter to the same, of January 24th, 1808, 
he says : 

" I send you a parcel of newspapers, to which I refer you for 
the debates in Parliament for the news of the day. The able 
speech of Lord Grenville, and the manly and eloquent protest of 
Lord Erskine will give you pleasure. The speeches of Mr. 
Wyndham and Mr. Eden in the House of Commons deserve 
your attention. 

" The anxiety which has been for sometime past rapidly in- 
creasing relative to the United States is now very great and very 
general. The belief is every where entertained that we shall be 
found to have taken a strong attitude. A hope is, however, 
indulged that it will be short of war, and that the peace of the 
two countries may yet.be preserved. 

*' I have not ceased in ray intercourse with all parties to en- 
deavour to diffuse (without losing sight of the manner) just 
notions as to the conduct which Great Britain ought, in prudence 
and in honour, to have observed towards us. Much ground has, 
undoubtedly, been gained ; but, impressively as events and 
strong demonstrations of wide-spread dissatisfaction here, begin 
to speak to this government, I fear that it is only from America 
that it can be completely enlightened. A dignified, firm, and 
temperate course on our part, must soon produce its proper effect 
on Great Britain, and I should hope on France also. 

" The most friendly dispositions are constantly professed by 
ministers, and I am quite sure that they are averse from a war 
with us ; yet the King's speech will satisfy you that there is no 
present intention of yielding any thing to our claims. In their 
tr.fatment of myself personally, there is every manifestation of 
kindness and respect for our country. My reception on the 



[ 82 ] 

birth day, and at Mr. Canning's dinner in the evening, were such 
as I should have had reason to be perfectly satisfi<^d with at any 
time. It has been mentioned to me, however, by a friend on 
whom I have great reliance, that Mr. Perceval in a late conver- 
sation observed, that although they did not wish, and would not 
seek, a war with the United States, yet that if we made such a 
war necessary, they would not, perhaps, much regret it, as a 
check to our maritime growth was becoming indispensibie. 

" The late Orders of Council will be assailed in Parliament as 
unconstitutional, as well as impolitic and unjust ; and a strong 
protest will be entered on the journals of the Lords, I dined 
yesterday at Lord Erskine's with most of the distinguished mem- 
bers of the oppositi(m ; as I found them agreeing in such a view 
of this subject as British statesmen ought to adopt. The com- 
pany consisted of the Duke of Norfolk, Lord Grenville, Earl 
Grey, Lord Chief Justice Ellenborough, Lord Lauderdale, Lord 
Holland, Lord H. Petty, Mr. Thomas Grenville, Mr. Tierney, 
Sir A. Pigot, Sir Samuel RomilN, Mr. Adam, Mr. Morris, 
(Lord Erskine's son-in-law) and myself. The utmost good will 
towards the LTnited States was shown by them all. The Duke 
of Norfolk having compelled me to go first to dinner, said, as he 
followed me, that he was happy to have an opportunity of show- 
ing his respect, not only for my station, but for the government 
and country I represented. 

" This little compliment (in answer to the usual disqualifying 
observation on my part) which I would not repeat if it had been 
personal, may be thought to derive a value frum circumstances, 
and from the conspicuous worth, and high rank and influence of 
the Duke of .\orfolk, and those by whom he was surrounded, 
which otherwise it certainly would not have. 

**#» ***** 

" I have thought it proper to discourage, by the only prudent 
means in my power, the unnecessary stay of American vessels in 
British ports, or indeed in Europe ; but there are, notwithstand- 
ing, a considerable number here. To urge their departure 
openly would have been too strong a step ; but every other expe- 
dient has been tried. I have no immediate fears for their safety, 
but they would be better at home. 



[ 83 ] 

" Prince Stahreraberg left England last week upon very short 
notice. It is said that the French government demanded his 
departure before the meeting of Parliament, and menaced Aus- 
tria with war, if this demand were not complied with ! He 
appears to have been more earnest in pressing the mediation of 
his court than was pleasing to this government; and it is known 
that he went away much dissatisfied. Mr. Alopeus has received 
his French passport, and will leave us soon. Jacobi has not yet 
received his. 

" Sir George Prevost goes out immediately to Halifax as 
Governor and Commander-in-Chief. It is believed to be certain 
that five thousand troops will be sent at the same time. A friend 
(whose intelligence is from a good source, but who may have 
made some mistake) has assured me that a very large additional 
force is in preparation for the British Northern colonies. I sus- 
pect he has misunderstood the conversatiim which he reports to 
me ; but he speaks with confidence on the subject. 

" I believe I have omitted in my former letters to mention that 
I was told at Downing-street, some time since, that instructions 
had been sent to Mr. Erskine by the packet, upon the subject ot" 
the Orders of Council. What was the precise nature of the 
explanations with which these instructions have charged him, I 
did not inquire ; but from what was stated to me, I presume that 
they could not be satisfactory. 

" I ought to mention that some of the opposition entertaia 
hopes of producing a change of Ministry. This is not a topic, 
however, lipon which I can now enlarge. 

" P. S. January 25th. 1 add to the parcel of newspapers, 
the Morning Chronicle and Times of this day, in which you will 
find another decree of the French government, enforcing with 
new sanctions and precautions, the decrees of the 23d of Novem- 
ber and 17th of December last. Spain has echoed the last men- 
tioned decree. The state of the world is full of embarrassments 
for us ; but this consideration should only serve to augment our 
patriotism and our firmness. Nothing can better illustrate the 
impolicy of the British orders than these measures of France 
and Spain, for which they have furnished a pretext." 



[ 84] 

In a letter to the same, of February 6th, 1808, 
he says : 

" You will observe that Mr. Perceval's speech in the House of 
Commons, is studiously respectful to us, while he justifies, and 
avows their determination to support their new system. As a 
defenpe of that system, his speech is nothing. It is more happy 
in recrimination than in argument ; and having the former re- 
commendation, the latter is absolutely unnecessary. I have al- 
ways suspected that the late administration were entrapped, in 
an ui^uarded hour, into the order of the 7th January, 1807, by 
the tten opposition, wlio now use it a< a triumphant answer to 
all that can be said in Parliament against their own orders. 
It was, indeed, a most injudicious measure. It was liable 
to the reproach of being at once violent and feeble, unjust 
and disingenuous. It asserted a pretension most alarming 
to neutral nations, which had no rightful foundation ; and 
then was affected to be referred to another which could not 
<|over what was done. Without losing the character of an 
tsurpation, it had the air of artifice and contrivance. It vio- 
lated the unquestionable rights of neutral commerce, while it 
professed the utmost tenderness for them ; and, while its actual 
provisions wore the appearance of inhibiting only the coasting 
trade of their enemies, (although, in fact, they did much more,) 
the preamble put forth such hitrh claims tor future use, as were 
ifi the end to leave no law upon the seas but force. It is proba- 
ble, however, that this pernicious order was resorted too merely 
because it was believed to be necessary to do something bearing 
upon the French decree — that minis-ters wished its actual effects 
to be as small as possible — that the real extent of its interference 
with neutral rights was little understood, except by those who 
formed it — that the preamble contained all that ministers valued 
in the measure — and that they valued the preamble only as it 
was supposf^d to be calculated, without doing harm, to satisfy 
the public expectation of the day, and to silence the clamours of 
thdr opponents ! Be this as it may, the order is, as I have rea- 
son to know, sincerely repented of. 

'^ The sweeping blockade notified by the same ministers in 



f 85] 

May, 1806, (from the Elbe to Brest inclusive,) was another of 
their sins, which tended to countenance, not only the British or- 
ders of the nth of November last, but the French decree of No- 
vember, 1806, according to its widest import. Besides, that the 
principle and object of that blockade would, if admitted, go to 
sanction almost any conceivable obstructions to the trade of neu- 
trals, no adequate stationary force is believed to have been as- 
signed to the maintaining of it in its details. It was, therefore, 
constructive in a very great degree, and must, indeed, from its 
nature and extent, have been so. Few men in this country of 
any party will suffer themselves to look back to this and similar 
abuses, as forming any apology or pretext for the subsequent de- 
claration of France, but the actual ministers will not fail to de- 
rive from them what aid they can, (without, however, admitting 
them to be abuses,) in favour of their own measures. You will 
find these measures (however they may be rested upon an assert- 
ed right of war) assuming every day more and more of the genu- 
ine appearances of trading expedients. The new system will 
naturally and necessarily be (as their vast blockades, the crea- 
tures of modern times, have invariably been) made subservient, 
as far as it can, by licenses and regulations, to their own manu- 
facturing, colonial, and commercial views, without any other re- 
gard to its professed object than such as will oppress us, by ex- 
cluding our cotton, &c. from the c'>ntinent. Even thus executed 
it will be a desperate game, which, if persisted in, can only end 
in ruin. 

" I mentioned to you, some time ago, that this government 
knew nothing of Regnier's letter of the 18th of September last, 
when the Orders of I'ouncil were issued. It is now certain that 
they knew nothing of it, until they received from America the Na- 
tional Intelligencer, in which it was published with the Presi- 
dent's late message. 

" I am in daily expectation of hearing from you. My situa- 
tion will, I fear, become a little embarrassing, if you forbear 
much longer to send my credenti ils, or some precise instruc- 
tions. I will make the best of it however. It is apparent that 
we gain ground here. TIu- tone is ahered. The Embargo has 
done much, although its motives are variously understood. Some 

12 



[86] 

view it with doubt and suspicion. The government appears to 
put a favourable construction upon it ; and all agree that it is 
highly honourable to the sagacity and firmness of our councils. 
Events which you could only conjecture when the measure was 
adopted, have already made out its justification beyond the reach 
of cavil. We shall, I trust, in the progress, be as faithful to 
our duty, as in the commencement of the crisis which has comf 
upon us.-*' 

" Private. London, February 22d, 180S. 

" Deak Sir, — I have the honour to enclose a copy of Mr. 
Percival's bill for carrying the late Orders of Council into effect. 
It is intended, as 1 am told, to alter it in some respects. The 
clause which imposes an export duty on the cargoes of neutral 
vessels changing their destination is to be omitted. The cotton 
of the British colonies is to be placed in the same predicament, 
whatever that may be, with American cotton, and instead of a 
prohibitory duty upon the export of that article, it is, I believe, 
determined, in consequence of the pressing advice of those who 
affect to understand the subject, aided by the late discussions in 
Parliament, to prohibit directly the exportation of cotton ; with 
a proviso, however, in favour of a licensing power in the King 
in Council, (of which I do not yet know the intended use,) 
and probably with an option to the neutral owner to export this 
counnodity upon payment of the duty heretofore contemplated. 
The change will be attributed to, and is declared to proceed 
from, a respect for our feelings ; but, unfortunately, the other 
parts of their system make this supposed respect of no value. 
This change in their plan has, indeed, been recently mentioned 
to me by Mr. Canning ; but I declined (as I had before done, 
upon a similar proposal, as already explained to you) to make 
myself in any degree a party to it. 

" You will find in the Resolutions, of which I have already 
sent you two copies (and which, after undergoing some altera- 
tions, are to form the table, A. B. and C. of the bill,) an export 
duty of 2s Gd. stg. per bushel on foreign salt. The eflect of 
this duty must be, and is intended to be, that the United States 
can no longer obtain their usual supply of that article (I think 



[ 87 ] 

about 300,000 bushels) from Spain and Portugal. Mr. Percival, 
calculating upon this effect, supposed that we must, of course, 
come here for British salt, not only to the amount heretofore 
taken by us, (I believe about 1,300,000 bushels,) but to the fur- 
ther amount of the supply heretofore obtained by us from Spain 
and Portugal, and perhaps more. Having thus, as he supposes, 
(without, by the bye, reflecting upon the difficulty of preventing 
us from procuring what salt we think fit from the Bahamas, &c. 
and upon the danger of our being induced to make it for our- 
selves,) created an absolute necessity for our taking between 
two and three millions of bushels at least of British salt, his 
plan is to take advantage of that necessity and lay an export du- 
ty upon it of 3d. stg. per bushel. I have some doubts of his be- 
ing able to make this strange attempt acceptable to Parliament, 
but he seems bent upon trying it. 

" As to the commodities of France, Spain, Holland, &c. im- 
ported into this country for exportation, they are charged with 
heavy duties upon re-exportation to the United States, which we, 
as the consumers, are, of course, to pay. But if the same com- 
modities are re-exported to a British colony in America, &c. 
most of them are exempted from tht'se duties by a proviso in the 
Bill. Thus a tribute is to be imposed upon us, which they do 
not choose to impose upon their own colonies, some of them in 
our immediate neighbourhood ; and authorized to trade with us 
by land or inland navigation in those commodities, so long as we 
do not entirely prohibit their importation. They will annoy 
their enemy at our expense, but not at their own. 

" It was expected that all the articles,^ forming the surplus of 
our colonial importations, would be (as they are) subjected to 
high duties on passing through British ports to the Continent. 
But it has an odd appearance in a measure professed to be purelv 
belligerent, and to be intended simply " to annoy the enemy," 
that the like articles, of which France is supposed to stand so 
much in need, and of which the privation or enhanced price 
would so severely distress her, are exempted altogether from 
those duties, if they come from British colonies. 

« You will find that a long section of the Bill touches our trade 
to the continent of Europe in East India articles. They must 



[88 3 

not only come to England on their way, but must come to. the 
port of London, &c. and afterwards pay high duties from which 
the Company's trade is free. 

" As to the duties which the resolutions proposed to lay (as 
I mi^ntioned in my last) upon tobacco, &,c. they seem to be 
explained by one of the provisos of the Bill, to which I refer 
you. 

" These laboured details are, after all, little more than sha- 
dows, unless indeed France should lend herself to this extrava- 
gant system, and the United States should follow her example. 
As this must be impossible, it follows that this gigantic plan of 
monopoly and tribute will sink into a smuggling scheme, by 
which the nation will be impoverished, corrupted, and disho- 
noured. 

" Mr. Baring's book is in great credit here. It is read with 
avidity, and is doing good. Parts of it are highly meritorious. 
It was wished to bring it out sooner, but it was found to be im- 
practicable. The author of " War in Disguise'' (whom it is 
intended to bring into Parliament) is preparing an answer to it. 

" The opposition in Parliament to the Orders in Council is 
powerful, and some have hopes that Ministers will be compelled 
to abandon them. It is certain that they are not cordially 
approved by all the cabinet ; but Mr. Percival and some of his 
colleagues are, I believe, determined to go on with their experi- 
ment at all hazards. Lord Hawksbury is now supposed not to 
have had much, if any, share in them. 



" P. S. Feb. 25. Mr. Percival has abandoned his proposed 
duty upon salt. 

" You will perceive, by the Parliamentary Debates, that an 
arrangement is contemplated with Sweden for subjecting exports 
from that country to transit duties equivalent to those which will 
be imposed here. 

" I now enclose a copy of Mr, Percival's Bill amended. I 
need not point out in what respects it differs from the first Bill. 
I enclose also copies of the papers just laid before Parliament 



[ 89 ] 

relative to America. They are misapprehended by the public, 
but will be explained in Parliament. 

" You will not fail to observe that in Mr. P.'s amended bill, 
cotton, wool, yarn, and bark, are excepted from the benefit of 
the clause in the third page, (Clause B.) relative to vessels coming 
in under warning." 

In a letter to Mr. Madison, dated the 25th of 
April, 1808, he says : 

"Mr. Rose has sent me your private letter of the 21st of 
March, for which I am gieatly indebted to you. I know, and 
sincerely regret, the state of your health ; and therefore entreat 
you not to make any effort (beyond what may be absolutely 
necessary for the public service,) to write to me. I will take for 
granted your good will, and if you will suffer me to do so, will 
presume upon your esteem. Of course, I shall not be ready to 
think myself neglected, if I hear from you but seldom, and shall 
not relax in my communications, because indisposition, a press 
of business, or some other reason, prevents you from giving 
much attention to my letters ; I will only stipulate for an occa- 
sional acknowledgment of them, so that I may know what have 
been received, and what have miscarried. I need not say that 
as much more as may be consistent with your convenience will 
be in the highest degree acceptable to me. 

" I feel very sensibly the delicacy and kindness of the assu- 
rances which you are so good as to give me, that the purpose of 
nominating me to the permanent legation Tiere was never for a 
moment suspended in the mind of the President. I am the more 
gratified by this evidence of his continuing confidence, because 
I have a firm persuasion that he will never have reason to repent 
it. I beg of you to say for me to him that I am truly grateful 
for this distinction. 

" I enclose another copy of the instruction to British cruizers, 
mentioned and enclosed in my last* Having been confined by 

* Orders encouraging our citizens to violate the Embargfo. 



[90] 

indisposition for some days, I cannot vouch that it has beeu 
actually issued ; but all information concurs to make it sufficiently 
certain. There is something extremely injudicious in this mea- 
sure — to say no more of it. I do not suppose that we ought to 
consider it (or rather to appear to consider it) as offensive to 
us ; but undoubtedly an attempt in the face of the world, thus to 
set the people against the government and its laws, is an ungra- 
cious act, and rests upon a bad principle. The effect of this 
wise contrivance, in America, can only be to add to the vigilance 
of the government in guarding the law, and to render more con- 
spicuous the just pride and the public spirit of our citizens by an 
open disdain of all foreign allurements to break it. Such an 
instruction manifestly r eposes upon a foul libel on our patriotism ; 
and is such a sneer upon our honour, national and individual, as 
should give us virtue, if we had it not before, to resist the tempta- 
tion which it offers to the worst of our passions. 

" I send herewith Brougham's speech on the Orders in Coun- 
cil,* another pamphlet which I have not read, and some news- 
papers. You will find in one of them the Report of an opinion 
of Sir James Mackintosh, as a Prize-Judge, which has drawn 
much attention here as a judicial anomaly .t In one of the num- 
bers of the Times are some smart observations upon it. 

P. S. I have just received my credentials, and your letter of 
the 8th of March by the packet, and have sent the customary 
note to Mr. Canning, requesting an interview, for the purpose of 
presenting them. The incident you mention was not the most 



* Mr. Brougham's Speech dplivered at the bar of the House of Commons^ 
•n the 1st April, 1808, as counsel for the petitioners against the Orders in 
Council, before he became a member of Parliament. 

f Mr P. here refers to the judgment of Sir James Mackintosh, then Re- 
corder of Bombay, in the case of the Mmerva, which will be found reported 
in the first volume of Mr Hall's American Law Journal, p. 217. In this 
case. Sir J. Mackintosh declares that he did not consider himself bound, 
when sitting as a Prize Judge, by the King's Instructions, any further thaw 
they were, in his opinion, consistent with the law of nations. 



E 91 •] 

fortunate that could have happened ;* but I hope it will produce 
no bad effect here. I will endeavour to set it to rights without 
hazarding any thing. 

" The freedom with which I hold it to be my indispensible 
duty to write to you, renders the delicate caution which the Pre- 
sident uses on such occasions peculiarly proper in my case ; but 
if he should at any time think that the interests of the state re- 
quire that publicity shoiJd be given to my despatches, I do not 
(because I ought not to) ask to be spared ; although certainly 
the publication of some of them during ray stay in this country 
would cause me most serious embarrassment. My course will 
continue to be to write with candour, frequency and fidelity, and 
to throw myself upon the kindness and wisdom of those to whom 
my correspondence belongs. I shall do so without doubt or fear 
of any kind. 

" P. S. April 26. Mr. Pickering's letter has just been sent to 
me by a friend in the city. I have not had time to read it ; but 
I hear it is spoken of as being rather too strong against the United 
States. Many copies of it are in town, and it will doubtless be 
re-printed in England. Have you prohibited the exportation 
of all pamphlets which uphold our rights and our honour ?" 

"Private. London, April 27, 1808. 

" Dear Sir,— I saw Mr. Canning this morning, and taking 
for granted (as the fact was) that he was apprized of all that 
happened relative to my despatch of the 23d of November last, 
I thought it prudent to afford him an opportunity of showing the 
effect it had produced upon him, by leading to the subject myself, 
as being suggested by the American newspapers. He had evi- 
dently received an impression from the transaction (although he 
would have concealed it) which it was proper to remove. My 
explanation appeared, as it ought, to be completely satisfactory. 
I proposed, however, to give him one or two extracts from the 
letter in question, which he consented to receive, with professions 
that they were (as 1 take for granted they were) unnecessary. 



* Alluding to the circumstance of the reading of one of his letters, with 
open doors in the Senate, it having been communicated conBdentiallj'. 



[ 92] 

I ought to say here, in justice to Mr. Canning, (if indeed it is not 
said with sufficient expUcitness in the letter itself, as I think it 
is,) that he did not attempt, in the course of the interview to which 
it alludes, to enter into a regular discussion with me of the merits 
of the Orders in Council ; expecting, as he certainly did, that I 
would present him a note on the whole subject, as I told him I 
should do, and declaring that he preferred a discussion in wri- 
ting. Why I afterwards declined to present him such a note my 
despatch explains." 

The solicitude of Mr. Pinkney to accomplish 
the intentions of his government, in seeking to 
remove, by pacific means, those obstacles which 
had been thrown in the way of neutral commerce, 
by the unjustifiable measures of the belligerent 
states of Europe, and his anxiety to vindicate 
the honour and rights of his country, will be ap- 
parent from the above extracts, and from the 
subsequent portions of his private correspondence 
"with Mr. Madison which are given in the Second 
Part. These will be found to be highly interest- 
ing, and to throw great light upon the transac- 
tions of the times.* 

But the year 1808 passed away without any 
adequate return for his zealous and persevering 
endeavours in the important mission with which 
he had been entrusted. In his letters to his more 
private friends, the eflfects of these cares upon his 
health and spirits are expressed with much sen- 
sibility, mingled with the strongest feelings of 
attachment to the scenes and companions of hi* 
youth. The two following letters to his brother, 



* See Part Secosd, No. III. 



will show the state of his mind at this interest- 
ing period. 

" London, April 2Sth, 1808. 

" Dear N., — I received a few days ago your very short letter 
on a very large sheet of paper. I expected a volume, and was 
obliged to put up with half a dozen lines. This is not well. 
After all, it is so much clear gain to hear from you ; and, giving 
you credit for good intentions and a good stock of affection, I 
thank you for your letter, which furnishes much evidence of both. 
I should have been gratified undoubtedly by a little intelligence 
about Annapolis, the health of friends, and so forth ; but you 
will give me all these in your heit letter ; and so \Ve will settle 
the accouht. ' 

" I congratulate you on ^he growth of your daughter. She is, 
I doubt not, worthy of all your care — and will, I sincerely hope 
and trust, give you many a delightful hour, ertiployed in watch- 
ing her improvement, and cultivating and forming her mind and 
manners. The purest, the most completely unmixed of all our 
enjoyments ; for even its anxieties are happiness ! 

" How does it happen that J. has not written to me ? It is 
odd enough that I, who seem to have a host of friends, as kind 
as heart could wish, when I am in Maryland, appear to have 
none the moment I leave it. This is poor encouragement to 
travel. I think, if ever I live to get back to the fontes et jlu- 
mina nata;, this consideration will induce me to make a vow to 
qui^tbem no more on any errand whatsoever. Even i/ou recol- 
lect me only when some striking event forces me, as it were, 
upon you ; and J. of course forgets me, because I keep no cash at 
the Farmers' Bank. Notwithstanding all this, remember me to 
him in the most affectionate manner. Tell him I think of him 
often. How I think of him he need not be told. 

" I have been more frequently indisposed within the last six 
months, than has been usual with me. I am, indeed, just re- 
covered from an attack. Too much employment and some in- 
quietude may have laid me open to these indispositions. The cli- 
mate does not suit me as well as it did. I hope to do better in 
Aiture ; but these warnings are not to be slighted. '" 

13 



[9-i ] 

" You have not mentioned the Governor in any of your let- 
ters. You must like him I am sure ; for he is of a liberal, gene- 
rous temper. I do not meet with your newspapers as often as I 
could wish ; but, from those I have seen, the Governor's conduct 
appears to have been active, spirited, and judicious on every oc- 
casion that has occurred since his first appointment. It was to 
have been confidently expected that it would be so. His prin- 
ciples have always been those of ardent patriotism ; and his 
mind, naturally strong and vigorous, has been enlightened by great 
experience. In my letter to him by Mr. Rose, (which, as Mr. 
Rose did not go to Annapolis as he expected, was not perhaps 
delivered,) I asked to have the pleasure of hearing from him 
when he should have a leisure hour which he could not otherwise 
employ. Will you take an opportunity of intimating this to him ? 
Remind Mr. II. and Mr. D. of me. Tell them that they neglect 
me ; but that I remember them with as much cordial esteem as 
ever. Where is my friend, Mr. E. ? If you should see him, 
say to him for me a thousand kind things. Inform Mr. M. that 
I wrote to him last auiumn; but fear my letter miscarried. As 
to Mr. C. he has given nie up entirely. There are many other 
friends of whom I could speak ; but I have not time. There is 
one, however, of whom I will find time to speak; and to her I 
beg you to say that she shares in all the regard I feel for you.'' 

" London, August '29tli, 1808. 

" Dear N., — I have had the pleasure to receive your letter of the 
l6th of July, and am happy to see that you do not forget me. 

I should reluctantly quarrel with your domestic felicity : but I 
might perhaps be in danger of doing so, if it appeared to en- 
gross you so entirely as to leave no leisure for a recollection now 
and then of us who are absent. 

" The letter of which you speak, (enclosing one from Mrs. 
P.,) came safe to hand; and if it had not, I should have invented 
half a d.ozRii apologies for you. 1 know you so well, that, when 
you appear to neglect nie, I am ready to throw the blame upon 
fortune, upon accident, (who are, I suspect, the same person- 
ages,) upon every thing, and every body, rather than upoa you^ 



[ 95] 

*' My health has been rather worse than I wished it ; but I am 
now convalescent. A short absence from town, (my family are 
still out of town) sea-air and sea-bathing have put me up again. 

" Such a result of my labours for the public, as you would 
flatter me with, would make me, I doubt not, the healthiest man 
in t.ngland. There is a sort of moral health, however, which 
crosses, and difficulties, and disappointments, tend very much 
to promote. I must endeavour to console myself with the 
opinion that I have laid in a good stock of that, while I was 
losing some of the other. 

" After all this philosophising, I am half inclined to envy you 
the smooth, even tenour of your life. You are every way hap- 
py — at home — abroad Nothing disturbs your tranquillity, far- 
ther than to show you the value of it. 

" Beloved by your family — respected and esteemed every 
where — your official capacity acknowledged — your official exer- 
tions successful — what have you to desire ? But / have been so 
tossed about in the world, that, although I am as happy at home 
as my neighbours, I can hardly be said to have had a fair and de- 
cent share of real quiet. The time may come, however, when 
I too shall be tranquil, and when, freed from a host of importu- 
nate cares, that now keep me company whether I will or not, I 
may look back upon the way I have travelled with a heart at 
ease, and forward with a Christian's hope, I suspect I am grow- 
ing serious when I meant to be directly the reverse. Thus, in- 
deed, it is with the great mass of our purposes. 

" I am rejoiced that Annapolis holds up its head. In itself the 
most beautiful, to me the most interesting spot on earth, I would 
fain believe, that it is doomed to enjoy the honours of old age 
without its decrepitude. There is not a foot of ground in its 
neighbourhood which my memory has not consecrated, and 
which does not produce, as fancy traces it, a thousand retrospec- 
tions that go directly to the heart. It was the scene of our youthful 
days. What more can be said ? I would have it to be also the 
scene of my declining years. 

. " Tell J. that I Would write to him if I could — but that I have 
scarcely leisure for this scrawl. He knows my affections, and 
will take the * will for the deed.' I offer him through you, my 



[96] 

felicitations upon the stability and wholesome effects of the 
Farmers' Bank. Ask him why it is that I do not hear from him ? 
All days are not discount days, and a man may be cashier of the 
Bank of England, and yet have a moment to spare to those who 
love him. I beg you to remember me to the Governor and to 
Dr. G., and to other friends." 

In a letler to Mr. Madison, dated January 16th, 
1809, speaking of the publication of his official 
letter of the 21st of September, 1808, on the sub- 
ject of the embargo, which had been communi- 
cated confidentially to Congress, but had found 
its way to the press, he says : 

" I regret that yon should have felt a moment's concern on 
account of the publicity given to my letter. It cannot be of the 
least importance. I do not believe that it will injure my stand- 
ing here ; but if it should, it can only lead to ray recall ; and 
as a recall, under such circumstances, would not imply the dis- 
approbation of my own government, it would give me no pain ; 
and it would most certainly put me to no inconvenience. I need 
not say how much I value every testimony of your friendship 
and confidence ; but if (as I hope and trust) you will have been 
called to the office of President, it is my most earnest request 
that you will not permit that kindness of which I have already 
had so many proofs, to stand in the way of your views for the 
public good generally, or for what I am sure will be the same 
thing, the strength and prosperity of your administration. Send 
Hoe back to my profession, with your good wishes, whenever it 
shall be thought expedient, and be assured of my sincere and un- 
alterable attachment." 

In a letter to the same of August 19th, 1809, 
he says : 

" It appears from the newspapers that Mr. Adams has been 
appointed minister to St. Petersbuig. I rejoice at this appoint- 



[ 97 ] 

ment, for many reasons. While I am speaking of a new diplo- 
matic station, will you forgive me if I intimate that the old can 
scarcely remain much longer on their present establishment ? 
The salary is so dreadfully inadequate, that I am ruining myself 
here in spite of all the care I can take to avoid it ; and I presume 
that General Armstrong is not better off at Paris, although the 
necessary expenses of Paris are less than those of London." 

The following is a letter to his brother ; 

" London, September 2Sd, I8O9. 

" Dear N., — I received, a iew days ago, your letter of the 
26th of June. I am much obliged to you for the intelligence 
given in a part of it, and still more for the kindness and affection 
which pervade the whole. A better choice of Governor cuuld 
not, I should think, have been made. It must have been very 
agreeable to you, and I congratulate you upon it accordingly. I 
have not yet received the letter which you tell me I am to expect 
from the Governor and Council. I shall be happy to do all in, 
my power to fulfil their wishes, whatever they may be. Wiliiam? 
is most fortunately fixed, and I have the utmost confidence that 
he will do well. If he does otherwise his condemnation will be 
great indeed. The children who are with me have shot up at a 
prodigious rate, and require much care and expense. Charles, 
who is a remarkably promising boy, has finished his preparatory 
course, and is now at Eton. Edward will be placed, after 
Christmas, at the school which Charles has left. Th© rest will 
continue to have masters at home. 

" My anxiety to return does not diminish. On the contrary, 
it grows upon me, and I find it necessary to wrestle with it. You 
know that I have as many and as strong inducements to be con- 
tented here, as any American could have ; but England is not 
Maryland ; and foreign friends, however great, or numerouSj or 
kind, cannot interest us like those of our native land, the com- 
panions of our early days, the witnesses and competitors of our 
first struggles in life, and the indulgent partakers of our sorrows 
and our joys ! I trust that I have as little disposition as any 
man to repine at my lot, and I know that I endeavour to form 



[ 98 ] 

uiy mind to a devout and reverential submission to the will of 
God. Yet I cannot conceal from myself, that every day adds 
something to my cares and nothing to my happiness ; that I am 
growing old among strangers ; and that my heart, naturally warm 
and open, becomes cold by discipline, contracted by duty, and 
sluggish from want of exercise. These may be called imaginary 
ills ; but there is another, which all the world will admit to be 
substantial — I speak to you in confidence — my salary is found 
by experience to be far short of the actual necessities of my 
situation. It was fixed at its present rate many years ago, when 
the style of living and the prices of articles would not bear a 
comparison with those of the present time. I have no right to 
complain, however ; and, therefore, I write this for your own 
perusal merely." 

The following extract of a letter to Mrs. Ninian 
Pinkney, refers to a domestic misfortune which 
she had recently sustained : 

"London, June 24th, 1809. 

" My Dear Madam, — If I had not found it impossible to 
answer your letter by the return of the Pacific, it vs'ould have 
been answered. Business occupied my time, and anxiety my 
heart to the last moment. I would have cheated the last of 
these tyrants of an hour or two by conversing with you ; but 
"the first forbade it, and I had no choice but to submit. From 
this double despotism I am now comparatively free, and the use 
which I make of my liberty is to trespass on you with a few 
lines. 

" 1 shall not condole with you on your late loss, though I am 
able to conjecture how keenly it has been felt ; you have your- 
self suggested one of the consolations which best support the 
good undei- the heaviest of all human calamities : JFe shall meet 
again in purity and joy the friends loho are every day falling 
around us. There is nothing which more effectually cheers the 
soul in its dark mortal pilgrimage than this noble confidence ; 
life would, indeed, be a sad journey without it ; the power of 



[ 99 ] 

lieatli is ill this view nothing ; it separates us for a season merely 
to fit us for a more exalted and holy communion. I have clung 
to this thought ever since I was capable of thinking, and I would 
not part with it for worlds ; it has assisted me in many a trial 
to bear up against the evil of the hour, and to shake ofi' in some 
degree (for who can boast of having entirely esciiped from) the 
influence of those passions that betray and degrade us. If f may 
dare to say so, it gives a new value to immortality, while it fur- 
nishes powerful incentives td virtqe. You cannot, I think^ have 
yet met with " Morehead's Discourses," One of his sermons 
turns upon the loss of children ; and he sets forth, with that 
eloquence, which comes warm from the heart, the softenings 
which this bitter affliction derives from religion.' When you 
can get the Sermon read it ; in the .meaii' tittie, the following 
short, extract will please you. It is exquisitely beautiful ; .and 
the best of our piodern Revie>v,s has quoted it as a^ soothing an/l 
original suggestion," 

" ' We are all .well aware of the iaffuppce of the world : We 

' know how strongly it engages our thoughts^ and debases the 
'springs of our actions: we all know how important it is to 
*• hav^ .the springs of our minds renewed ,- and Mie: rust >wbich 

* ;gathers over them cleared away. One of the principal adv^ft- 
' tages, perhaps, which arises from the possession of chiJflreiL,, is 

* that, in their society, the simplicity of our nature is- conste^ntly 

* recalled to our view ; and that when we return' frorh the cai-es 
' and thoughts of the world into oUr domestic circle, we behold 
' beings whose happiness springs from ijo false estimates of 
' worldly goqd, but from the benevolent instiaGts of nature. Xbe 
' same ynoral advantage is often deprived in a greater degr.ee 
'from the memory of those children loho^have left us. Their 
' simple characters dwell upon "oiii''minds \v1tnd deeper imprd^- 
' sion ; their least actions vetunn 'to 6ur thought^ with more forcie 
' thvin if we had it still ii? our pqwer to. wittiess, them ; aiid they 
' re;turn, to ijs .clothed in. thf\t s^mtly garb >vliiGl,i bdopg^.to .the 
< possessors,'ofi.a hi^er e.xiiSteuce . We fe<?l that there is now a 
' link connecting us with a jinrer and a better' scene of beings ; 
* that a pult of ourselves has 'goAe before us'ldto the bosoni of 



[ 100 ] 

' God ; and that the same happy creatures which here on earth 
"* showed us tlie simple sources from which happiness springs, 
'now hover over us, and scatter from their wings the graces and 
' beatitudes of eternity.' " 

" Who can read this passage without feeling his heart in uni- 
son with it ? It cannot be read without inspiring a pleasing 
melancholy, and lifting the mind beyond the low contaminations 
of this probationary state, ' To scenes where love and bliss 
immortal reign.' " * * * 

Mr. Pinkney's official communications with the 
British government, were supposed by some per- 
sons in this country to be deficient in that firrtt- 
hess and decided tone which would have been 
becoming an American minister whilst remon- 
strating against aggressions the most injurious 
and insultingl But his communications with that 
government, as to their mai^ner, were dictated by 
the, tenor of his instructions, which were of the 
iriost pacific and conciliatory character. His con- 
duct in this respect was assailed in sdme of the 
public prints with great, and as he felt, unmerited 
severity. In the mean time, the compensation 
which he had received from the State of Mary- 
land for his services in the business of the bank 
stock, together with the money he had saved from 
the professional earnings pf his youthful days, 
had been absorbed in the expenses incident to 
the education of his children in a foreign country, 
and to the munificent and hospitable style of liv- 
insf which he had adopted in London, as be- 
coming his public station, and necessary t© re- 



[ 101 ] 

ciprocate the civilities he received from others. 
He alludes to these painful circumstances in a 
letter to Mr. Madison, dated August 13th, 1810, 
of which the following is an extract : 

" Before I conclude this letter, I beg leave to mention a sub- 
ject in which I have a personal interest. I am told, and, indeed, 
have partly seen, that I am assailed with great acrimony and per- 
severance in some of the American newspapers. It is possible 
that increasing clamour, though it can give me no concern, may 
make it convenient that I should be recalled ; and it certainly 
will not be worth while to make a point of keeping me here, for 
any time, however short, if many persons in America desire that 
it should be otherwise. I can scarcely be as useful to our coun- 
try under such circumstances as 1 ought to be, and I have really 
no wish to continue for any purpose looking to my own advan- 
tage. If I consulted my personal interest merely, I should al- 
ready have entreated your permission to return. The dispropor- 
tion between my unavoidable expenses and my salary, has ruin- 
ed me in a pecuniary sense. The prime of my life is passing 
away in barren toil and anxiety, and, while I am sacrificing my- 
self and my family in the public service abroad, ill disposed or 
silly people are sacrificing my reputation at home. My affec- 
tionate attachment to you need not be mentioned. If it» since- 
rity is not already manifest, time only can make it so, and to 
that I appeal. But by seeking to remain in office under you, 
against the opinion of those whose remonstrances will at least be 
loud and troublesome, if they are not reasonable and just, I 
should show a want of all concern for your character and quiet. 
I do not seek it therefore. On the contrary I pray you most 
earnestly to recall me immediately (the manner of it would, I am 
sure, be kind) if you find it in any way expedient to do so. Be- 
lieve me I shall go back to my profession with a cheerful heart, 
and with a recollection of your unvarying kindness which nothing 
can ever impair. I should, indeed, look forward to retirement 
from official station with the deepest sorrow, if I supposed that 
in parting with me as a minister, you were to part with me also 

14 



[ 102 ] 

as a friend. But the friend will remain — not for a season only^ 
but always — and be assured that, thmigh you will have many 
abler friends, you can have none upon whose truth and zeal you 
may more confidently rely. In a word, I do not at this moment 
request my recall, but I shall receive it without regret, if youy 
with better means of judiring than I can have, should think it ad- 
visable, That I should remain here much longer is hardly pos- 
sible ; but I flatter myself that in forbearing at present to ask 
vour consent to my return, I do not lose sight of the public good. 
" This is a very long letter and full of egotism — but it will 
have an indulgent reader, and will 1 know, be excused." 

In an answer to this letter, dated October 30th, 
1810, ivir. Madison says : 

" The personal sensibilities which your letter expresses, are far 
greater than I can have merited by manifestations of esteem and 
confidence which it would have been unjust to withhold. As a 
proof of your partiality, they ought not on that account to ex- 
cite less of a return. As little ought your readiness to retire 
from your station, from the honourable motives which govern 
you, to be viewed in any other light than as a proof of the va- 
lue which attaches itself to your qualifications and services. It 
is not to be denied that a good deal of dissatisfaction has issued 
through the press against some of your intercourse with the 
British government. But this could have the less influence on 
the Executive mind, as the dissatisfaction, where not the mere in- 
dulgence of habitual censure, is evidently the result of an honest 
misconception of some things, and an ignorance of others, nei- 
ther of which can be lasting. I have no doubt that if your sen- 
timents and conduct could be seen through media not before the 
public, a very different note would have been heard ; and as little, 
that the exhibitions likely to grow out of the questions and dis- 
cussions in which you are at present engagtd, will more than re- 
store the ground taken from you." 

Durinir his residence as minister in Great 
Britain, Mr. Pinkney's attention was, among other 



[ 103 ] 

objects, directed to the magnificent scene of 
public industry wiiich that country displays. He 
perceived that her manufacturing establishments 
were one of the main springs of her wealth and 
power, and witnessed with pleasure the rapid pro- 
gress of those agricultural improvements which 
have contributed so much to the opulence and 
embellishment of the island. He was anxious 
that his own country should participate in the 
benefits derived from the advancement of these 
important arts. In a letter to Mr. Madison, 
dated August, 1809, he says : 

" As we are turning our attention to wool, T have added a tract 
lately published here, on the Merino and Anglo-Merino sheep, 
which may be of use. I trust that we shall continue to culti- 
vate such manufactures as suit our circumstances. Cottons now 
and woollens hereafter, must continue to flourish among us." 

Among other occasions of a similar character, 
he was present at the cattle show of that distin- 
guished patron of agriculture, Lord Somerville, 
in the spring of 1810. After the business of the 
day, a very large company sat down to a public 
dinner. Lord Somerville in the chair. The pre- 
miums having been distributed, his lordship, 
among other toasts, gave — 

< Mr. Pinkney, the American Minister ; and may harmony 
• always prevail with those who speak the same language.' 

Which was received with enthusiastic applause 
by the company. 



[ 104 ] 

Mr. Pinkney, in returning thanks for this mark 
of respect to himself, and to the country he re- 
presented, desired his Lordship and the company 
to be persuaded that he was very grateful for the 
unexpected notice which they had been so good 
as to take of the United States and their minister. 

" I thank you,'' said lie, " in tlie first place, for my country, 
nnd I hope I shall not be thought very presumptuous, if led, or 
even misled, by my wishes, to conclude that personal kindness 
may have had some litile share in prompting your conduct on 
this occasion, I venture to thank you for myself, I trust, my 
Lord, it is scarcely necessary for me to say how sincerely I join 
in the wish which has been so well received by the noblemen 
and centlemen here present, that there may be perpetual good 
understanding between Great Britain and the United States. 
An American I^linister has, in truth, no merit in anxiously desir- 
ing cordial friendship with this country on terms consistent with 
the honour of his own ; and your lordship will allow me to re- 
joice that there do exist on both sides the most powerful and 
obvious inducements to cultivate such friendship. We need not 
trouble ourselves to inquire whethfr it be true, as some poli- 
ticians have pretended, that interest is the only tie of sufficient 
strength to hold independent nations together as friends, for wc 
are fortunately bound in amity by all sorts of ties, which I fer- 
vently hope we shall not, even if it were possible that we should 
be so disposed, be strong enough to break. No reflecting and 
impartial man can doubt, tliat the true interests of Great Britain 
and America are compatible in all cases, the same in most. A 
liberal and comprehensive view of these can lead to no other 
conclusion than that they are calculated to cherish and invigo- 
rate each other. But a sense of this compatibility and identity 
of interests, effectual as it ought to be in communicating a cha- 
racter of steady friendship to our relations, is not the only pledge, 
of harmony between us ; for a thousand kindly influences, with 
which calculation has no concern, combine to form an auxiliary 
pledge, little inferior in strength. I should hope, and far superiop 



[ 105 ] 

in moral beauty, I am sure, to the other. These influences, my 
lord, it would be a pleasing, and perhaps not unprofitable, task 
to review in detail, and by reviewing, to give thera freshness, 
and augmented activity, for the noble and salutary purposes of 
peace and kindness. But I have already trespassed too long on 
your indulgence, if, indeed, I have not trespassed upon that dis- 
cretion which so emphatically becomes my situation. I beg 
leave to drink the health of your lordship, &c." 

In the following letter to Mr. Madison, Mr. 
Pinkney solicited his recall with more earnest- 
ness than he had hitherto done. The motives 
which induced him to decline remaining any 
longer in the public station which he had occu- 
pied, are fully explained in this letter. 

"LoNDOxX, Nov. 24, 1810. 

*' Dear Sir, — I send by this opportunity to the Secretary of 
State, a letter, entreating your pei mission to return to America. 
I have not thought it necessary to mention in that letter my 
motives for this apparently abrupt request ; but you will, I am 
•sure, be at no loss to conjecture them. 

" I ask your leave at this time to close my mission here, be- 
cause I find it impossible to remain. I took the liberty to 
suggest to you in my letter by Mr. Ellis, that I was not unwilling, 
though I had no desire, to continue a little longer ; but, upon a 
recent inspection of my private affairs, it appears that my pecu- 
niary means are more completely exhausted than I had supposed, 
and that to be honest I must hasten home. 

" The compensation (as it is oddly called) allotted by the 
Government to the maintenance of its Representatives abroad is 
a pittance, which no economy, however rigid, or even mean, can 
render adequate. It never was adequate I should think ; but it 
is now (especially in London) far short of that just indemnity 
for unavoidable expenses which every government, no matter 
what its form, owes to its servants. 



[ 106 ] 

<* I have in fact been a constant and progressive loser, and at 
length am incapable of supplying the deficiencies of the public 
allowance. Those deficiencies have been hitherto supplied by 
the sacrifice of my own capital in America, or by my credit, 
already pushed as far as the r^^mnant of that capital will justify, 
and I fear somewhat farther. I cannot, as an honourable man, 
with my eyes open to my situation, push it farther, and of course 
I must retire. I do not mean to exaggerate the amount of my 
capital thus dissipated in a thankless office. It was not very 
large — it could not be so. 1 have spent too much of my life 
(how faithfully none will have the injustice to question) in the 
public service, to admit of that. But such as it was, it had its 
value as a stake, in case of accidents, for those about me, and 
being now gone, cannot hereafter eke out a scanty salary. It is 
superfluous to say that I have no other resource. 

" This is the consideration which has urged me to write for 
my reeall at this moment. 

" Tht-re are others, however, which ought, perhaps, to have 
produced the same effect at even an earlier period, and would 
have produced it, if I had followed my own inclinations rather 
than a sense of duty to you, and to the people. Some of these 
considerations respect myself individually, and need not be 
named ; for they are nothing in comparison with those which 
look to my family. Its claims to my exertions for its benefit in 
my profession have been too long neglected. Age is stealing 
fast upon me, and I shall soon have lost the power of retrieving 
the time which has been wasted in endeavours (fruitless it would 
seemj to deserve well of my country. Every day will, as it 
passes, make it more difficult to resume the habits which I have 
twice improvidently abandoned. At present, I feel no want of 
cheerful lesolution to seek them again as old friends which I 
ought never to have quitted, and no want of confidence that they 
will not disown me. How long that resolution, if not acted 
upon, may last, or that confidence may stand up in the decline 
of life, I cannot know and will not try. 

" I trust it is not necessary for me to say how much your 
kindness, and that of your predecessor, has contributed to subdue 
the anxieties of my situation, and to make me forget that I ought 



[ 107 ] 

to leave a post, at once so perilous anil costly, to richer and to 
abler hands. Those who know rae will believe that my heart is 
deeply sensible of that kindness, and that ray memory will pre- 
serve a faithful record of it while it can preserve a trace of any 
thing. 

" I am in danger of making this a long letter. I will only 
add to it, therefore, that 1 shall prepare myself (in the expecta- 
tion of receiving your permission) to return to the United States 
as soon as the season will allow me to do so with convenience 
to my family ; and that, if my duty should, in any view of it, 
require a more prompt departure, I shall not hesitate to act as 
it requires." 



Mr. Pinkney continued still to press upon the 
Britisii government the complaints of this coun- 
try, until finding that no attention was likely to 
be paid to his remonstrances, he demanded an 
audience of leave in pursuance of the President's 
instructions On the last of February, 1811, he 
had his audience of leave at Carlton House, and 
stated to the Prince Regent the grounds upon 
which it had become his duty to take his leave, 
and expressed his regret that his efforts to set to 
rights the embarrassed and disjointed relations 
of the two countries had wholly failed, and that 
he saw no reason to expect that the great woVk 
of reconciliation was likely to be accomplished 
through any other agency. 

He soon after embarked for the United States 
in the frigate Ei^se.Y, and arrived at Annapolis in 
June, 1811. On his arrival in this country he 



[ 108 ] 

immediately resumed the labours of his profes- 
sion with his accustomed alacrity and ardour. 

In September, 1811, he was elected a member 
of the Senate of the state of Maryland. 

In the following December, Mr. Madison ten- 
dered him the appointment of Attorney General 
of the United States, which he accepted in the 
following letter : 

" Anmapolis, Dec. 17, 1811. 

" Dear Sir, — I had the honour to receive, late last night, the 
letter which you were so good as to write to me on the 12th, 
and at the same time my Commission as Attorney General of 
the United States. I shall not delay a moment in repairing to 
Washington, after a few importunate engagements here have 
been satisfied ; and I hope to set out in a ie^w days. 

" Permit me to thank you again for the great kindness and 
delicacy with which this appointment has been tendered to me, 
and to assure you that if I should fail to justify your choice by 
an able discharge of my official duties, I shall at least prove that 
I know how to discharge the duties of gratitude and friendship." 

In a subsequent letter to Mr. Madison, he 
says : 

" I have received a letter from Mr. Dallas, from which it 
appears that he has not been applied to by Mr. Gallatin to assist 
in the cases in the Supreme Court, in which it was thought his 
aid would be advisable ; and further, that he would be willing to 
assist, if applied to. Although I shall be perfectly prepared to 
argue one of them, (the case of the French national vessel,) it 
will be a great gratification to me to have him for an assistant in 
both. I take the liberty to submit it to your consideration whe- 
ther an early application to him would not be well, if it is 
intended to retain him at all. 



[ t09 ] 

** I find an immense mass of business in the Supreme Court io 
which the government is concerned ; but I hope to get through 
with it at the ensuing term. The Committee of Claims has 
referred Beaumarchais' case to me upon the law of it. It per- 
plexes me exceedingly ; for in strict law the discount cannot 
well be maintained, and yet in all righteousness it ought to be 
insisted on — at least there seems to be the strongest probability 
that it ought." 



The case of the French national vessel referred 
to in the above letter, involved a very interesting 
question of international law. The Exchange 
was originally a merchant ship, belonging to citi- 
zens of this country, which had been seized by 
the emperor Napoleon under his decree issued at 
Rambouillet, armed and commissioned in his 
service, and sent to carry despatches to the East 
Indies. In the course of her voyage, she touched 
at the port of Philadelphia, being in distress, and 
our waters being at that time open to the ships of 
war of all the belligerent powers. She was there 
proceeded against by the original American own- 
ers, who reclaim<id their property in the ordinary 
course of justice, and the cause was finally 
brought before the Supreme Court ; the French 
Minister having insisted in his correspondence 
with our government that the justice and legality 
of the original seizure was a question of state to 
be settled by diplomatic negociation between 
France and the United States ; and that it could 
not be determined by the ordinary tribunals of 
Justice, especially as the vessel had entered a port 

15 



[ 110 J 

of this country under the general permission to 
the public sliips of foreign nations. The same 
principle of exemption from judicial cognizance, 
for the vessel thus entering our waters, was also 
maintained by Mr. Pinkney, as Attorney General, 
with a force of argument and eloquence, and an 
extent of learning, which raised him at once in 
the public estimation, to the head of the Ameri- 
can bar. 

He reasoned to show that where wrongs are in- 
flicted by one nation upon another, in tempestu- 
ous times, they could not be redressed by judi- 
cature ; that where the private property of a citi- 
zen had been ever so unjustly confiscated in the 
tribunals of a foreign state, a regular judicial con- 
demnation closes the judicial eye upon the enor- 
mity of the original seizure ; and still less could 
the courts of justice interfere where the sovereign 
rights of a foreign prince had intervened. He 
compared the case in judgment to the analo- 
gous exemption (under the law of nations) from 
the local jurisdiction of the coointry, of the per- 
son of the sovereign, of his ministers, or his 
fleets and armies, coming into the territory of 
another state, by its permission, express or im- 
plied. He insisted upon the equality of sove- 
reigns, and that they could not submit their rights 
to the decision of another sovereign, or his courts 
of justice ; but that the mutually conflicting 
claims of independent states must be adjusted 
by diplomatic negociation, or reprizals and war; 
that no reprizals had been authorized by our 



[ 111 ] 

government in the present instance, and that the 
general provisions of the laws descriptive of the 
ordinary jurisdiction of the national courts to re- 
dress private wrongs, ought not to be so interpret- 
ed as to give them cognizance of a case in which 
the sovereign power of the nation had, by impli- 
cation, consented to waive its jurisdiction. These 
topics of argument, which were made the grounds 
of tlie decision pronounced by the court, he am- 
plified and illustrated by a variety of considera- 
tions, drawn from the impotency of the judicial 
power to enforce its decisions in such cases ; 
from the exclusive competence of the sovereign 
power of the nation adequately to avenge wrongs 
committed by a foreign sovereign, and to deter- 
mine when it shall assert, and when it may com- 
promise its extreme rights ; from the nature of 
the questions growing out of such transactions, 
as being rather questions of state policy than of 
jurisprudence, of diplomatic than of forensic dis- 
cussion. 



It was a rash assertion of an illustrious writer, 
that there are no discoveries to be made in mo- 
ral science and in the principles of government. 
To say nothing of other improvements which the 
present age has witnessed, mankind are indebted 
to America for the discovery and practical ap- 
plication of a federative scheme of government, 
which combined with the representative system. 



[ 112 ] 

and avoiding the inherent defects of all preceding 
confederacies, it is consolatory to believe, may 
yet diffuse the blessings of liberty over the civi- 
lized world, and by the establishment of a new 
and more perfect social order, promote the hap- 
piness of the human race more than any other in- 
vention of modern times. The organization of 
the judicial power is one of the most curious and 
nicely adapted parts of this admirable scheme of 
government. Its highest appellate tribunal is 
invested with an imposing combination of autho- 
rities. Besides its extensive powers as an ordi- 
nary court of justice, it administers the law of 
nations to our own citizens and to foreigners ; 
and determines, in the last resort, every question 
(capable of a judicial determination) arising un- 
der our municipal constitution, including the con- 
flicting pretensions of the state and national sove- 
reignties. It is before " this more than Amphic- 
tyonic council," that the American lawyer is called 
to plead, not merely for the private rights of his 
fellow-citizens, but for their constitutional privi- 
leges, and to discuss the conflicting pretensions 
of these sovereignties. Generally speaking, the 
practice of the bar in this country is not confined 
to particular courts. Our lawyers not being re- 
stricted to any peculiar department of the pro- 
fession, their technical learning is usually of a 
more liberal and expansive cast than in the coun- 
try from whence we have derived our legal insti- 
tutions. Their professional habits and studies 
do not unfit them in any degree for the perform- 



•i*'* 



[ 113] 

ance of the higher and more important functions 
of statesmen and legislators. There can be no 
doubt that in England, greater skill and nicety of 
execution are acquired by the minute subdivision 
of labour which the state of the profession and 
the condition of society have produced. Hence 
we find there more perfect matters of the science 
of equity, of special pleading, or of the civil and 
canon laws as they are administered in the Ad- 
miralty and Consistorial courts. But the peculiar 
circumstances and condition of this country have 
roused the latent faculties of the people, and 
given a greater flexibility and variety to the talents 
of its public men ; whilst they have enabled our 
most eminent lawyers, when called unto the pub- 
lic service, to perform all the offices of peace and 
war with as much ability and success as in those 
countries where youth are prepared for the duties 
of public life by a peculiar system of education 
exclusively adapted to that purpose. They have 
liberalized their minds by the study of general 
jurisprudence ; and when removed from the bar 
into the cabinet or senate, have, generally, been 
found to sustain the reputation which they had ac- 
quired in a more limited walk. The infancy of 
the country, and the perfect freedom of its poli- 
tical institutions, have contributed to this result. 
Society is not broken into those marked distinc- 
tions and gradations of rank and occupation, 
which demand a correspondent separation of mere 
professional employments, from those connected 
with the business of the state ; whilst, at the 



[ 114 ] 

same time, the bar, as in the ancient republics, 
is the principal avenue to public honours and 
employments. These circumstances, combined 
with the singular nature of the jurisdiction of 
the Supreme Court as administering the Politi- 
cal Law, have advanced the science of juris- 
pz'udence in the United States far beyond the 
general condition of literature, and have raised 
the legal profession to a higher rank in public esti- 
mation than it enjoys in any other nation. 

At the same session of the court, when the case 
of the Exchange was discussed, the much agi- 
tated question whether the United States, con- 
sidered as a federal government, have an unwrit- 
ten or common law, which may be administered 
in the courts of the Union, in criminal and other 
cases, in the absence of any statutory provision, 
arose in the case of an indictment for a libel on 
the President and Congress. The Attorney- 
General (Mr. Pinkney) and the counsel for the 
defendant both declined arguing the question, for 
some reason which does not appear. But I am 
told that Mr. Pinkney had formed, and frequently 
expressed, a very decided opinion that the courts 
of the Union possessed a common law jurisdic- 
tion ; though I have not been able to learn what 
were the grounds of this opinion, or the limita- 
tions he would have admitted to the views which 
are attributed to him. The court pronounced its 
judgment for the defendant, a majority of the 
judges present being of the opinion that it had 
»ot jurisdiction of the case* But it seems that 



[ 115] 

the question is not yet considered as at rest, the 
court having, in a subsequent case, which came 
on for hearing in 1816, expressed a willingness to 
listen to an argument upon it, notwithstanding 
the former decision. 

The whole subject has been recently discussed, 
in a very able and elegant work, by Mr. Dupon- 
ceau. He considers that there would have been 
little difficulty in solving the problem, if in stating 
it, the ambiguous terms common law jurisdiction 
had not been used ; which he conceives are sus- 
ceptible of a double interpretation, implying in 
the one sense a jurisdiction which may be law- 
fully assumed, and in the other a power in direct 
opposition to the letter and spirit of the national 
constitution : so that the controversy has been to 
maintain or reject altogether this common law 
jurisdiction, in every sense in which the terms 
may be used, whilst a proper distinction would 
have reconciled all conflicting opinions upon the 
subject. In England, the common law is the 
source of jurisdiction to all the courts. In this 
country, it is no longer the source of power or 
jurisdiction, but the means or instrument through 
which it isexercised. The common law is a sys- 
tem of jurisprudence, and nothing more. From 
the common law, considered as a source of potcer, 
no jurisdiction can arise to any court ()( justice in 
this country, state or national ; but considered as 
a means for the exercise of power, every lawful 
jurisdiction may be exercised through its instru- 
mentality, and by its proper application. 



[ 116] 

Having thus disarmed the common law of its 
only dangerous attribute, what he calls the power 
giving capacity, Mr. Duponceau proceeds to 
aro-ue with great acuteness and ingenuity, that 
considered as a .system of jurisprxidence, it is the 
national law of the Union, as well as that of the 
particular States. It would be wandering too far 
from the subject of the present publication tO 
enter into a critical examination of his reason- 
ings ; but it may not be improper to remark that 
the same distinction seems to have been held in 
view by Mr. Justice Story in Coolidge's case,* 
although the proposition is not enunciated in 
such formal terms, or so elaborately discussed as 
by \Ir. Duponceau, the nature of the case being 
such that the jurisdiction might more properly be 
considered as resting upon the Admiralty powers 
of the Court, than upon its general common law 
authority to punish offences against the United 
States. 



In the political controversies which grew out 
of the Declaration of War with Great Britain in 
1812, Mr. Pinkney took a very decided and zea- 
lous part. The following extracts from a pam- 
phlet written by him, and addressed to the people 
of Maryland, under the signature of Fublius, in 



- Gallison's Reports, yol. I. p. 488. 



[ 117 ] 

1813, will show his views and feelings upon the 
momentous question which then agitated the 
public mind. 

" But it is impossible that, in weighing the merits of a candi- 
date for a seat in the General Assembly, you should be occupied 
by considerations which are merely local. You are bound to 
give to your inquiries a wider range. You neither can, nor 
ought, to shut your eyes to the urgent concerns of the whole 
empire, embarked as it is in a conflict with the determined foe 
of every nation upon earth sufficiently prosperous to be envied. 
Maryland is at all times an interesting and conspicuous mem- 
ber of the Union ; but her relative position is infinitely more 
important now than in ordinary seasons. The war is in her 
waters, and it is waged there with a wantonness of brutality, 
which will not suffer the energies of her gallarft population to 
slumber, or the watchfulness of her appointed guardians to be 
intermitted. The rights for which the nation is in arms, are of 
high import to her as a commercial section of the Continent. 
They cannot be surrendered or compromised without affecting 
every vein and artery of her system ; and if the towering honour 
of universal America should be made to bow before the sword, 
or should be betrayed by an inglorious peace, wher? will the 
blow be felt with a sensibility more exquisite than here in Ma- 
ryland ? 

" It is perfectly true that our State government has not the 
prerogative of peace and war ; but it is just as true that it can 
do much to invigorate or enfeeble the national arm for attack or 
for defence ; that it may conspire with the legislatures of other 
States to blast the best hopes of peace, by embarrassing or resist- 
ing the efforts by which alone a durable peace can be achieved ; 
as it may forward pacific negociation by contributing to teach 
the enemy that we who, when our means were small, and our 
numbers few, rose as one man, and maintained ourselves victo- 
rious against the mere theories of England, with all the terrors 
of English power before us, are not nnw prepared to crouch to 
less than the same power, however insolently displayed, and to 

16 



[ 118 ] 

receive from it in perpetuity an infamous yoke of pernrciotis 
principles, which had already galled us until we could bear it no 
longer. 

" That the war with England is irreproachably just, no man 
can doubt who exercises his understanding upon the question. 
It is known to the whole world, that when it was declared, the 
British government had not retracted or qualifif'd any one of 
those maritime claims which threatened the ruin of American 
commerce, and disparaged American sovereignty. Fvery con- 
structive blockade, by which our ordinary communication with 
European or other marts had been intercepted, was either per- 
versely maintained, or made to give place only to a wider and 
more comprehensive impediment. The right of impressmenty 
in its most odious form, continued to be vindicated in argument 
and enforced in practice. The rule of the war of 1756, against 
which the voice of all America was lifted up in 1805, was still 
preserved, and jiad only become inactive because the colonies 
of France and her allies had fallen before the naval power of 
England. The l)rders in Council of 1807 and 1809, which in 
their motive, principle, and operation, were utterly incompatible 
with our existence as a commercial people ; which retaliated with 
tremendous effect upon a friend the impotent irregularities of an 
enemy ; w^hich established upon the seas a despotic dominion, 
by which power and right were confounded, and a system of 
monopoly and plunder raised, with a daring contempt of de- 
cency, upon the wreck of neutral prosperity and public law ; 
which even attempted to exact a tribute, under the name of an 
impost, from the merchants of this independent land, for per- 
mission to become the slaves and instruments of that abominable 
system ; had been adhered to (notwithstanding the acknowl- 
edged repeal of the Berlin and Milaa decrees in regard to the 
United States) with an alarming appearance of a fixed and per- 
manent attachment to thost^ very qualities which fitted them for 
the work of oppression, and filled us with dismay. Satisfaction, 
and even explanation, had been either steadily denied, or con- 
temptuously evaded. Our complaints had been reiterated till 
we ourselves blushed to hear ihem, and till the insolence with 
which they were received recalled us to some sense of dignity. 



[ "9 ] 

History does not furnish an example of such patience under such 
iin accumulation of injuries and insults. 

" The Orders in Council were indeed provisionally revoked a 
i'ew days after the declaration of war ; in such a manner, how- 
ever, as to assert their lawfulness, and to make provision for 
their revival, whenever the British government should think fit 
to say that they ought to be revived. The distresses of the 
manufacturing and other classes of British subjects had, at last, 
extorted from a bigotted and reluctant cabinet what had been 
obstinately refused to the demands of justice. But the lingering 
repeal, inadequate and ungracious as it was, came too late. T/i£ 
Rubicon had been passed.''* 

**** ***## 

" ' Nothing is more to be esteemed than peace,' (I quote the 
wisdom of Polybius,) 'when it leaves us m possession of 
' OUR HONOUR AND RIGHTS ; but when it is joined with loss pf 
' freedom, or with infamy, nothing can be more detestable and 
' fatal.' I speak with just confidence, when I say, that no fede- 
ralist can be found who desires with more sincerity the return 
of peace than the republican government by which the war was 
declared. But it desires such a peace as the companion and 
instructor of Scipio has praised — a peace consistent with our 
rights and honour, and not the deadly tranquillity which may be 
purchased by disgrace, or taken in barter for the dearest and 
most essential claims of our trade and sovereignty. I appeal to 
you boldly : Are you prepared to purchase a mere cessation of 
arms by unqualified submission to the pretensions of England ? 
Are you prepared to sanction them by treaty and to entail them 
upon your posterity, with the inglorious and timid hope of esca- 
ping the wrath of those whom your fathers discomfited and 
vanquished ? Are you prepared, for the sake of a present profit, 
which the circumstances of Europe must render paltry and pre- 
carious, to cripple the strong wing of American commerce for 
years to come, to take from our flag its national effect and cha- 
racter, and to subject our vessels on the high seas, and the brave 
men who navigate them, to the municipal jurisdiction of Great 
Britain ? I know very well that there are some amongst us (I 
hope they are but few) who are prepared for all this and more ; 
who pule over every scratch occasioned by the war as if it were 



[ 120 ] 

an overwhelming calamity, and are only sorry that it is not 
worse ; who would skulk out of a contest for the best interests of 
their country to save a shilling or gain a cent ; who, having in- 
herited the wealth of their ancestors without their spirit, would 
receive laws from London with as much facility as woollens 
from Yorkshire, or hardware from Sheffield. But I write to the 
great body of the people, who are sound and virtuous, and worthy 
of the legacy which the heroes of the revolution have bequeathed 
them. For them, I undertake to answer, that the only peace 
which tliey can be made to endure, is that which may twine 
itself round the honour of the people, and with its healthy and 
abundant foliage give shade and shelter to the prosperity of the 
empire. 

" I passed rapidly in a former number over the justifying 
causes of the war. But you must permit me in this place, and 
for a single instant, to recur to one of them, as introductory to a 
consideration which you will do well to lay to your hearts when 
you are assembled at the polls. The foundation upon which the 
claim of Great Britain reposes, to send a press-gang on board of 
our ships upon the ocean, as if they were the docks or the ale- 
houses of Liverpool, is simply the right of the crown, as it is 
recognized by her laws, to the services of every subject in time 
of war. The doctrine amounts to this, that a man born v> ithin 
the British dominions is, in a quaUfied sense, the property of the 
government, in virtue of an artificial and slavish notion of per- 
petual allegiance ; that, though he may have been forced by 
poverty or persecution to emigrate, and has become the citizen 
or subject of another state, his allegiance cleaves to him for life ; 
that no time, or distance, or sanctuary, or new obligations can save 
him from its m^'sterious and inextinguishable power ; and that, 
of course, he may be seized wherever and whenever he can be 
found. 

" But the abominable doctrine is associated with another, 
Avhich says, that although no state can be sufiered to hold British 
seamen in its service by naturalization or otherwise. Great Britain 
may encourage the seamen of other states to enter into her ser- 
vice, and may keep them there till she wants them no longer ! 
And, that nothing may be wanting to the consistency of the 



[ 121 ] 

British doctrine on this head, it goes on to maintain that if a fo- 
reign seaman should happen to marry and settle (as it is phrased) 
in an EngUsh port, he may be impressed as an English saih)r, 
and may be retained as such against his own remonstrance, 
seconded by that of his country ! 

" In the execution of the first of those rules, which the asso- 
ciated rules so pointedly discountenance, our vessels were stop- 
ped on their lawful voyages, and their mariners taken away by 
violence upon the bare allegation, whether true or false, that they 
were British* subjects. Many of these persons were native Ame- 
ricans, many of them were neutral !' uropeans over whom Great 
Britain had no lawful control, and many more were fairly enti- 
tled to be considered as American seamen, according to the law 
which Great Britain had (as I have already stated) laid down 
and enforced against us and the rest of the world. It was im- 
possible that, with the best disposition, such a rule should be 
made to act only on the professed objects of it. But it was of- 
ten exercised with wanton tyranny by proud and upstart surro- 
gates in naval uniform ; and the abuses grew to be enormous and 
intolerable. The approach of a British cruizer, in the bosom 
of peace, struck a terror into our seamen which it cannot now 
inspire, and almost every vessel returning from a foreign voyage, 
brought affliction to an American family, by reporting the im- 
pressment of a husband, a brother, or a son. The government 
of the United States, by whomsoever administered, has invaria- 
bly protested against this monstrous practice, as cruel to the gal- 
lant men whom it oppressed, as it was injurious to the naviga- 
tion, the commerce, and the sovereignty of the Union. Inder 
the administration of Washington, of Adams, of Jefferson, of 
Madison, it was reprobated and resisted as a grievance which 
could not be borne ; and Mr. King, who was instructed upon it, 
supposed at one time that the British government were ready to 
abandon it, by a convention which he had arranged with Lord 
St. Vincent, but which finally miscarried. You have witnessed 
the generous anxiety of the late and present chief magistrate 
to put an end to a usage so pestilent and debasing. You have 
seen them propose to a succession of English ministers, as in- 
ducements to its relinquishment, expedients and equivalents of 



[ 122 ] 

infinitely greater value to England than the usage, whilst they 
were innocent in themselves and respectful to us. You have 
seen these temperate overtures haughtily repelled, until the other 
noxious pretensions of Great Britain, grown in the interim to a 
gigantic size, ranged themselves by the side of this, and left no 
alternative but war or infamy. We are at war accordingly, and 
the single question is, whether you will fly like cowards from the 
sacred ground which the government has been compelled to 
take, or whether you will prove by your actions that you are 
descended from the loins of men who reared the edifice of Ame- 
rican liberty, in the midst of such a storm as you have never felt. 

" As the war was forced upon us by a long series of unexam- 
pled aggressions, it would be absolute madness to doubt, that 
peace will receive a cordial welcome, if she returns without igno- 
miny in her train, and with security in her hand. The destinies 
of America are com nercial, and her true policy is peace ; but the 
substance of peace had, long before we were roused to a tardy 
resistance, been denied to us by the ministry of England ; and 
the shadoiv which had been left to mock our hopes and to delude 
our imaginations, resembled too much the frowning spectre of 
war to deceive any body. Every sea had witnessed, and con- 
tinued to witness, the systematic persecution of our trade and the 
unrelenting oppression of our people. The ocean had ceased to 
be the safe high-way of the neutral world ; and our citizens tra- 
versed it with all the fears of a benighted traveller, who trembles 
along a road beset with banditti, or infested by the beasts of the 
forest. The government, thus urged and goaded, drew the sword 
with a visible reluctance ; and, true to the pacific policy which 
kept it so long in the scabbard, it will sheathe it again when 
Great Britain shall consult her own interest, by consenting to for- 
bear in future the wrongs of the past. 

" The disposition of the government upon that point has been 
decidedly pronounced by facts which need no commentary. 
From the moment when war was declared, peace has been sought 
by it with a steady and unwearied assiduity, at the same time 
that every practicable preparation has been made, and every 
nerve exerted to prosecute the war with vigour, if the enemy 
should persist in his injustice. The law respecting seamen, the 



[ 123 ] 

Russian mission, the instructions sent to our charge d'aflaires in 
London, the prompt and explicit disavowal of every unreasona- 
ble pretension falsely ascribed to us, and the solemn declara- 
tions of the government in the face of the world, that it wishes 
for nothing more than a fair and honourable accommodation, 
would be conclusive proofs of this, if any proofs were necessary. 
But it does not require to be proved, because it is self-evident. 
What interest, in the name of common sense, can the govern- 
ment have (distinctly from that of the whole nation) in a war 
with Great Britain ? It is obvious to the meanest capacity that 
such a war must be accompanied by privations, of which no 
government would hazard the consequences, but upon the sug- 
gestions of an heroic patriotism. The President and his support- 
ers have never been ignorant that those who suffer by a war, 
however unavoidable, are apt rather to murmur against the 
government than against the enemy, and that while it presses up- 
on us we sometimes forget the compulsion under which it was 
commenced, and regret that it was not avoided with a provident 
foresight of its evils. 

" It will, therefore, be no easy matter to persuade you that this 
war was courted by an administration who depend upon the 
people for their power, and are proud of that dependence ; or 
that it will be carried on with a childish obstinacy when it can 
be terminated with honour and with safety. You huve, on the 
contrary, a thousand pledges that the government was averse to 
war, and will give you peace the instant peace is in its power. 
Yoii know, moreover, that the enemy will not grant it as a boon, 
and that it must be wrung from his necessities. It comes to this, 
then : whom will you select as your champions to extort it from 
him ? upon whom will you cast the charge of achieving it 
against him in the lists ?" 

* » * • * ** * * # 

In the progress of the war by sea a g?*eat va- 
riety of interesting and difficult queytions of pub- 
lic law were brought before the Prize Courts for 
determination. Under the old Confederation, 



[ 124 ] 

this branch of the law of nations was adminis- 
tered according to the ordinances published by 
Congress, recognizing the leading principles of 
prize law, as practised by the maritime states of 
Europe. These ordinances, some of which were 
published even before the declaration of inde- 
pendence, and during the limited hostilities pre- 
viously authorised, were followed by measures for 
the estoblishment of a navy, and a Board of Com- 
missioners for its government, similar to the 
present Navy Commissioners ; and for the ap- 
pointment of advocates to manage the maritime 
causes in which the United States might be con- 
cerned. 

A Court of Appeals was also organized for the 
express purpose of finally determining causes of 
this nature ; and it is to be lamented that so few 
of the decisions of a tribunal, in which some of 
the most distinguished jurists and patriots of our 
country presided, should have been preserved or 
published for the instruction of posterity. The 
necessary consequence was that the breaking out 
of the late war found us almost without experience 
in this branch of law, so far as it depends upon 
judicial precedents. This defect could be but 
imperfectly supplied by a resort to the elemen- 
tary writers on the law of nations, most of 
whom are extremely deficient in practical details, 
and a particular application of the general prin- 
ciples they hiy down. It therefore became ne- 
cessary to discuss anew all the leading doctrines 



[ 125] 

of prize law ; and to confirm them by the autho- 
rity of the Supreme Court. 

In laying the foundations of the system which 
was thus built up, Mr. Pinkney co-operated as an 
advocate ; and his learning and peculiar expe- 
rience in this science contributed essentially to 
enlighten the judgments of the court. 



A bill having been brought into the House of 
Representatives, requiring the Attorney-General 
to reside at the seat of government, Mr. Pink- 
ney, who found it incompatible with his other 
professional engagements to remain constantly 
there, tendered a resignation of his office to the 
President. On this occasion he received the 
following letter from Mr. Madison. 



" Washington, January 29, 1 814. 

" Dear Sir, — I have received your letter, conveying a resig- 
nation of the important office held by you. As the bill to which 
you refer has not yet passed into a law, I hope you will be able 
to prolong your functions till a successor can be provided ; and 
at any rate to afford aid in the business of the United States 
particularly understood by you, at the approaching term of the 
Supreme Court. 

" On the first knowledge of the bill I was not unaware that 
the dilemma it imposes might deprive us of your associated ser- 
vices, and the United States of the advantages accruing from 
your professional car? of their interests. I readily acknowledo'e 
that in a general view, the object of the bill is not ineligible to 

.17 



[ 126 ] 

the Executive. At the same time, there may be instances where 
talents and services of peculiar value outweigh the consideration 
of constant residence ; and I have felt all the force of this truth 
since I have had the pleasure of numbering you among the part- 
ners of my public trust. In losing that pleasure, I pray you to 
be assiu'ed of my high and continued esteem, and of ray sincerest 
friendship and best wishes." 



At the session of the Court in 1815, was brought 
to a hearing the celebrated case of the Nereidcj 
the claim in which had been rejected in the Dis- 
trict Court of New- York, and the goods con- 
demned, upon the ground that they were captured 
on board of an armed enemy's vessel which had 
resisted the exercise of the right of search. This 
cause had excited uncommon interest on account of 
the very great importance and novelty of the ques- 
tions of public law involved in it, as well as the 
reputation of the advocates by whom it was dis- 
cussed. 

The claimant, Mr. Pinto, was a native and resi- 
dent merchant of Buenos Ayres, which had de- 
clared its independence of the parent country, al- 
though it had not yet been acknowledged as a sove- 
reign state by the government of this country. 
Being in London in 1813, he liad chartered the 
British armed and commissioned ship in question 
to carry his goods and other the property of his 
father and sister to JBuenos Ayres, and took pas- 
sage on board the vessel, which sailed under 
British convoy, and having been separated from 



[ 127 ] 

the convoying squadron, was captured off the 
island of Madeira, after a short action, by the 
United States' privateer the Governor Tompkins. 
The cause was argued by Mr. Emmett and Mr. 
Hoffman for the claimant, and by Mr. Dallas,* 
and Mr. Pinkney for the captors. 



* Alexander James Dallas was born in the island of Jamaica, 
on the 21st of June, 1759. He was the son of Robert Charles 
Dallas, a native of Scotland, and a very eminent physician. 

In early youth, Mr. Dallas was taken to England by his father 
for the purpose of education. He was for sometime at West- 
minster school, and afterwards became a pupil of Elphinstone, the 
translator of Dr. Johnson's mottoes to his periodical essays. 
Mr. Dallas was in the habit of seeing Dr. Johnson at Elphin- 
stone's house, and having on one occasion addressed the author 
of the Rambler in a complimentary Latin essay, was immedi- 
ately honoured by the great moralist with the present of a beauti- 
ful copy of that work. 

In 1780, he married a lady of Devonshire in England ; and 
after a short residence in London with Captain George Anson 
Byron, (who had shortly before married his sister, and who was 
the youngest son of Admiral Byron, and the uncle of the celebrated 
poet Lord Byron,) he embarked for Jamaica to recover his patrimo- 
nial inheritance in that island. In this pursuit he was unsuccess- 
ful, and left Jamaica for the United States, and arrived at New- 
York in June, 1783. Determining to remain in this country, he 
removed to Philadelphia, and took the oath of allegiance to the 
Commonwealth of Pennsylvania on the 17th of June, 1783. 

Mr. Dallas had, while in London, entered his name at the 
Temple, preparatory to the study of the law. In Jamaica he 
practised for a short time, and received the commission of a 
Master of Chancery. His prospects of professional business 
and public promotion in that island were very flattering, but on 
his arrival in the United States he determined to unite his for- 
tunes with those of this young republic. He was adjoiitted to 



[ 128 ] 

In the course of his argument, Mr. Pinkney 
insisted that the property ought to be condemned 
as good prize of war upon the three following 
grounds : 

1. That the treaty of 1795 between the United 
States and Spain, contained a positive stipulation, 
adopting the maxim of what has sometimes been 
called "the modern law of nations," that /rce 



the bar of the Supreme Court of Pennsylvania in July, 1785, 
and to that of the Circuit Court of the United States in April, 1790. 

In the political divisions of the country he attached himself to 
the republican party, and was appointed, in 1791, Secretary of 
the Commonwealth of Pennsylvania, by Governor Mifflin. In 
this station he continued until the year 1801, having been suc- 
cessively re-appointed by Governor Mifflin and Governor 
M'Kean. In 1801, he was appointed by President Jefferson, 
the Attorney of the United States for the district of Pennsylva- 
nia. During the same year he was conmiissioned as Recorder 
of Philadelphia by the State government, and the compatibility of 
that office with the one he held under the national government, 
having been drawn in question, by his political opponents, was 
argued before the Supreme Court of Pennsylvania. The judgment 
of that tribunal having been pronounced in his favour, he imme- 
diately afterwards resigned the office. 

Besides the different official situations which he held, he ac- 
companied the Governor of Pennsylvania, as Aid-du-camp, and 
Paymaster General of the forces, in the expedition to suppress 
tht' western insurrection in 1794. On this occasion he conducted 
with singular diligence and activity, and his services were highly 
useful to the public cause. 

In the early part of his professional career, having much lei- 
sure, he occupied himself with various literary undertakings, and 
prepaijed for the press the first volume of his valuable series of 
law reports. In 1795, he completed, with universal approba- 
tion, an edition of the laws of Pennsylvania, with notes, in three 
volumes, folio. 



[ 129 ] 

ahips shall make free goods ; and although it did 
did not expressly mention the converse propo- 
sition that cne7ny sJiips should make e^iemy goods, 
yet it did not negative that proposition ; and as the 
two maxims had always been associated together 
in the practice of nations, the one was to be con- 
sidered as implying the other. 

2. That by the Spanish prize code, neutral 



In October, 1814, he was appointed Secretary of the Trea- 
sury by President Madison, and acted as Secretary of ^"V ar from 
the 22d April, 1815, until the army was re-organized upon the 
peace establishment. He administered the Treasury department 
at the most difficult crisis in the affairs of the country wliich has 
occurred since the establishment of the present national govern- 
ment ; and whatever may be thought of the relative merit of his 
financial plans in comparison with those suggested by others, the 
praise of having rescued the national finances from the most 
perplexing embarrassments, cannot justly be denied him. " In 
" the month of December, 1816, peace being restored, the finan- 
'' ces arranged, the embarrassment of the circulating medium 
'' daily diminishing, and soon to disappear under the influence of 
" the National Bank, which it had so long been his labour to es- 
*^ tablish, his property insufficient to defray the expenses of his 
" situation, with a family still dependent on him, he resigned 
" this honourable station, and returned to his practice of the 
" law in Philadelphia.. Here he again entered upon professional 
" business with the zeal and ardour of youth. His business was 
" immense, and his talents as an advocate were held in requisi- 
" tion not only at home, but from almost every quarter of the 
" Union. In the midst, however, of prospects more briUiant 
" than he had ever witnessed, and while indulging in the fond 
" belief that a iew years of exertion would repair the injury in 
" his private fortunes occasioned by his devotion to the public 
" service — his career was suddenly closed by the inexorable 
" hand of death." 



[ 130 ] 

properly found on board of enemies' vessels was 
liable to capture and condemnation, and that this 
being the law of Spain applied by her when bel- 
li o-crent to us and all other nations when neutral 

o 

by the principle of reciprocity, the same rule was 
to be applied to the property of her subject, which 
Mr. Pinto was to be taken to be, the government 
of the United States not having at that time ac- 



While laboriously engaged in the trial of a cause at Trenton, 
in New Jersey, he was attacked by a complaint to which he had 
for a long time been subject, and had barely time to reach his 
-family in Philadelphia, when he died on the l6th of January, 

1817. 

Mr. Dallas possessed a mind highly gifted by nature, and 
richly cultivated with a great variety of useful and elegant know- 
ledge. An early and frequent habit of writing had given him 
an uncommon facility in composition. His style, both in speak- 
ing and writing, was chaste and perspicuous : seldom embellished 
with rhetorical ornament, but always marked by good taste. 
The various public stations he had filled, his habits of diligent 
study, and intercourse with the most intelligent persons, had 
enabled him to acquire an extensive knowledge of mankind and 
of literature ; which he imparted in his colloquial intercourse 
with peculiar facility and grace. . His manners were highly 
polished, and his amiable disposition endeared him to a large 
circle of friends, and rendered him an ornament to the elegant 
society in which he moved. As an advocate, he was- distin- 
guished for his patient industry — his accurate learning — and his 
diffusive and minute investigation of the subjects he undertook 
to discuss. When called to a seat in the national cabinet, be- 
sides his accustomed diligence, activity, and method in business, 
he displayed an energy of character not generally looked for, 
and showed that he possessed the bold and comprehensive views 
of a patriotic and enlightened statesman. 



[ 131 ] 

knowledged the independence of the Spanish 
American colonies. 

3. He contended that the claim of Mr. Pinto 
ought to be rejected on account of his unneutural 
conduct in hiring, and putting his goods on board 
of, an armed enemy's vessel, which sailed under 
convoy, and actually resisted search. 

But on this last head, I have thought it fit to 
let Mr. Pinkney speak for himself, as the discus- 
sion involved an interesting principle of interna- 
tional law, and his manner of treating it will give 
the reader some notion of his forensic style and 
peculiar mode of reasoning upon legal subjects. 
For this purpose I have inserted this portion of his 
argument, together with the exordium and perora- 
tion of his speech in this cause.* It is well known 
that Mr. Pinkney's argument was overruled by 
the court, and the sentence of condemnation re- 
versed by the opinions of a majority of the judges 
of the Supreme Court. It is remarkable, how- 
ever, that it should have been determined by Sir 
William Scott, a short time before the hearing 
in the Nereide, (although the judgment was not 
known in this country,) that British captors were 
entitled to salvage, for the recapture of neutral 
(Portuguese) property, taken by one of our cruiz- 
ers on board our armed British ship, upon the 
ground that the goods would have been liable to 



• See Part Second, No. IV. The Editor very much regret* 
that it has not been in his power to procure a full note of the 
very able and eloquent argument of Mr. Emmet in this cause. 



I 132 ] 

condemnation in our courts of prize according to 
the established principles of the law of nations.* 

But the Supreme Court did not so understand 
that law, nor did they consider the case of Mr. 
Pinto such as it had been represented in the argu- 
ment of Mr. Pinkney, and the glowing, meta- 
phorical language by which it was sought to be 
illustrated. 

In the words of Mr. Chief Justice Marshall, in 
delivering the judgment of the Court, " the Ne- 
" reide was armed, governed, and conducted by 
" belligerents. With her force, or her conduct, 
" the neutral shippers had no concern ; they de- 
" posited their goods on board the vessel, and 
" stipulated for their direct transportation to 
" Buenos Ayres. It is true, that on her passage, 
'' she had a right to defend herself, and might 
" have captured an assailing vessel ; but to 
*' search for the enemy would have been a viola- 
*' tion of the charter party and of her duty. 

" With a pencil dipped in the most vivid co- 
" lours, and guided by the hand of a master, a 
" splendid portrait has been drawn, exhibiting 
" this vessel and her freighter as forming a single 
" figure, composed of the most discordant mate- 
" rials of Peace and War. So exquisite was the 
" skill of the artist, so dazzling the garb in which 
" the figure was presented, that it required the 
" exercise of that cold investigating faculty which 

* Dodson's Admiralty Reports, rol. I., p. 443. 



" ought always to belong to those who sit on this 
^' bench, to discover its only imperfection, — its 
" want of resemblance. 

" The Nereide has not that centaur-like ap- 
*' pearance which has been ascribed to her. She 
" does not rove over the ocean, hurling the thun- 
" ders of war, while sheltered by the olive branch 
" of peace. She is not composed in part of the 
" neutral character of Mr. Pinto, and in part of 
" the hostile character of her owner. She is an 
" open and declared belligerent ; claiming all the 
" rights, and subject to all the dangers, of the bel- 
" ligerent character. She conveys neutral pro- 
" perty which does not engage in her warlike 
" equipments, or in any employment she may 
" make of them ; which is put on board solely 
" for the purpose of transportation, and which 
^' encounters tlie hazard incident to its situation ; 
" the hazard of being taken into port, and obliged 
" to seek another conveyance, should its carrier 
" be captured. 

" In this, it is the opinion of the majority of the 
" Court there is nothing unlawful. The charac- 
" ters of the vessel and the cargo remain as dis- 
*' tinct in this as in any other case."* 



Soon after the conclusion of the peace with 
Great Britain, the citizens of Baltimore, where 



* Cranch's Reports, vol, ix. p. 430. 

18 



[ 134 ] 

Mr. Pinkney still continued to reside, held a public- 
meeting, at which the following Address, drawn 
up by hiip, was adopted and directed to be trans- . 
mitted to Mr. Madison. This paper may be con- 
sidered as embodying the opinions and feelings 
of Mr. Pinkney upon the great struggle through 
which the country had just passed ; opinions and 
feehngs which he had frequently expressed in 
popular essays, and speeches to public meetings, 
and which lie never withheld from his fellow-citi- 
zens in public or in private. He had been an 
eye-witness of the unceasing anxiety of our 
government to avoid a resort to war, and of the 
spirit in which their forbearance was met by the 
opposite party. He had exposed his own life in 
the defence of his country. He was, therefore, 
peculiarly qualified to give utterance to the sen- 
timents of a people, who had .nanifested an un- 
shaken attachment to the public cause ; who had 
never wavered in their fidelity to the government 
and the country ; and who had repelled with cou- 
rage and constancy the attacks of an enterprizing 
enemy flushed with his recent success against the 
capital of the nation. 

'•' To the President of the United States. 
" We beg leave to offer to you our sincere congratulations up- 
on the conclusion of an honourable peace between the United 
States and Great Britain, anrl at the same time to express our un- 
feigned admiration of the enlightened wisdom, and patriotic firm- 
ness, by which your conduct has been distinguished during the 
extraordinary trials to which for some time past our country has 
been exposed by foreign injustice. 



[ 135 ] 

'"' In the anxious and long-continued efforts of our government 
to avoid a contest' witli England, we have seen and approved 
tiiat spirit of moderation and love of peace, which ought in a 
peculiar manner to characterise republican rulers ; and in the de- 
cision with which an appeal to arms was made, when forbear- 
ance was no longer possible, we recognize and applaud that cou- 
rageous devotion to the rights and honour of the nation, which a 
brave people are entitled to expect from those who are the depo- 
sitories of their power. 

" The struggle which followed that appeal was necessarily 
commenced under formidable difficultifs, growing out of our own 
situation and that of the enemy ; but it was marked in its pro- 
gress by signal triumphs, won by a navy in the weakness of its 
infancy, from the greatest maritime nation on the globe, and by 
an army and militia in which discipline had only begun to lend 
its aid to valour, from those who had long been formed to mili- 
tary habits, and had become familiar with victory over the vete- 
ran troops of France. 

" That struggle has revived, with added lustre, the renown 
which brightened the morning of our independence. It has call- 
ed forth and organized the dormant resources of the empire : 
it has tried and vindicated our republican constitution : it has 
given us that moral strength which consists in the well-earned re- 
spect of the world, and in a just respect for ourselves. It has 
raised up and consolidated a national character, dear to the hearts 
of the people, as an object of honest pride and a pledge of fu- 
ture vmion, tranquillity, and greatness. It has not, indeed, been 
unaccompanied by occasional reverses ; yet even these have had 
their value and may still be wholesome to us, if we receive them 
as the warnings of a protecting Providence against the errors of 
a false confidence, and against intemperate exultation iri the midst 
of more prosperous fortune. Many of our citizens, too, have 
fallen in this conflict, and it becomes us to mourn their loss ; but 
they have fallen that their country might rise ; they have cement- 
ed with their blood the fabric of her Ittippiness and glory ; and 
although death has snatched them from us, they will still live in 
their example and in the grateful remembrance of their country- 
men. 



[ 136 ] 

" Throughout this severe probation your course has been stea- 
dy and uniform, you have not been turned aside from the pursuit of 
peace, through a vigorous preparation for war, by unforseen and 
gij;antic embarrassments, enhanced if not produced by an opposi- 
tion more active and persevering than ever before was known to 
palsy tlie energies of a free state, in the hour of her greatest 
peril. The result of constancy, sustained and animated by vir- 
tue, has been what it ought to be : the result has been a peace 
which every American feels that he may enjoy, not only without 
a blush, but with a lofty consciousness that it brings with it aug- 
mented honour for the present, and security for the future/' 



I have mentioned that Mr. Pinkney was active- 
ly engaged in the defence of the country during 
the war. Soon after it was declared he was elect- 
ed to command a volunteer corps which had been 
raised in Baltimore for local defence, and which 
was attached as a battalion of riflemen to the 
third brigade of Maryland militia. He marched 
with his corps to Bladensburg, at the time of the 
attack on the city of Washington by the British 
under General Ross, and conducted with great 
gallantry in the action at the former place, where 
he was severely wounded. Some time after the 
peace, he resigned his command, on which occa- 
sion the following communications passed be- 
tween him and his fellow-soldiers. 

" To the Battalion of Riflemen, attached to the 3d Brigade of 
Maryland Militia. 

" It has become necessary, fellow-citizens, that I should resign 
my commission as your Major ; and I am about to resign it ac- 
cordingly. I accepted it, as you know, during the late war widi 



[ 137 ] 

England, in the hope that it would enable me to be in some de- 
gree useful in the defence of our country. In the event, my use- 
fulness has been very small; but the knowledge that yours was 
great and signal has consoled me ; it has more than consoled me ; 
it has filled me with an honest pride. 

" Your bravery, and skill, and conduct, have won for you a 
high name, that ought to be dear to you as a corps. It will, I 
trust, be as a bond of union, and keep you together under a 
better commander than I can pretend to be. You cannot have 
a commander more truly attached to you personally, and to your 
honour as soldiers, than 1 have always been ; but certainly you 
may have one with more activity, more leisure, more knowledge 
of your peculiar discipline. 

" If the war had continued, I would not have parted from 
you ; but peace has taken away the only motive which could 
justify me, at my age, and in my situation, in holding a military 
commission. 

" I take my leave of you, therefore, under a persuasion that pro- 
priety demands it. I need not tell you that I do so with regret, 
produced by a remembrance of our past connexion ; nor is it ne- 
cessary that I should assure you that in ceasing to be your com- 
manding officer, I shall not cease to be your friend. 

" WM. PINfCNEY. 

" Baltimore, Sept. 22, 1815." 

" Baltimore, Oct. 11, 1815. 
" Major WxM. Pinkney : 

" Sir, — The Battalion of Riflemen attached to the Third Bri- 
gade Maryland Militia, have received, with emotions of deep 
regret, the information that you have resigned that command, 
the duties of which, during a most arduous period, you discharg- 
ed with so much honour to yourself, advantage to the corps, and 
to your country. 

" As long as our government cherished the pleasing hope that 
the force of justice, reason, or argument, could induce a pow- 
erful nation to cease from violating our neutral rights, harassing 
our lawful commerce, and dragging our seamen into ignominious 
bondage, your splendid talents and matchless eloquence were em- 



[ 138 ] 

pioycd ill the attenij)t ; commanding the respect ofyour opponents 
and the apphiuse ofyour adminng country. But, when our gov- 
ernment was at lengUi tardily convinced that the hope it had so 
long cherished was indeed fallaciousj and reluctantly determin- 
ed, in compliance with the wishes of the nation, to appeal to 
arms, your fellow-citizens beheld you among the foremost to 
second that appeal, and unsheathe your sword to assert the vio- 
lated rights, and avenge the insulted honour, of our beloved coun- 
try ; your talents were there directed to improve that discipline, 
increase that devotion, and exalt that courage, which were even- 
tually so successfully employed in bringing the war to a speedy 
and an honourable termination. 

'' If, in the course of the glorious contest, this corps has ac- 
quired any claim to the applause of its country, we do not hesi- 
tate to ascribe it, in a great degree, to the influence of your 
example, which pervaded its ranks, and invigorated its exertions, 
in the day of battle. To be separated from an officer whose 
talents, courage, and patriotism, are universally admired, and 
whose blood has been freely shed in defence of that cause, the 
justice of which his eloquence had, on many occasions, so abun- 
dantly established, must be at any time a subject of regret ; but 
we console ourselves with the reflection, that under existing cir- 
cumstances, the portion ofyour valuable time, which would have 
been occupied by the duties of the command you have resigned, 
may be more beneficially employed in discharging the important 
duties of that honourable station in the councils of the republic, 
to which you have been called by the gratitude and confidence 
ofyour fellow-citizens." ^ 



The station hi the public councils to which Mr. 
Pinkney had been called in the manner stated in 
the above Answer, was that of a Representative in 
Congress from the city of Baltimore. Soon after 



[ 139 ] 

his election, a question arose of very great impor- 
tance under our peculiar political ^stem, which 
was discussed with much zeal and talent in the two 
houses of the national legislature. A commercial 
convention between the United States and Great 
Britain was signed at London in July, 1815, and 
subsequently ratified by the President and Senate, 
by which it was stipulated that the discriminating- 
duties on British vessels and their cargoes, then 
subsisting under certain acts of Congress, should 
be abolished, in return for a reciprocal stipulation 
on the part of Great Britain. On this occasion 
a' bill was brought into the House of Representa- 
tives to carry the convention into effect, specifi- 
cally enacting the stipulations contained in the 
convention itself. This bill was opposed by Mr. 
Pinkney in a speech containing a full discussion 
of the whole subject, both as connected with the 
law of nations and our own municipal constitu- 
tion.* 

In order to explain this speech, it may not be 
useless to mention that the bill passed the House 
of Representatives, but was rejected in the Senate ; 
that body having passed a mere declaratory bill 
enacting that so much of any act of Congress as 
was contrary to the stipulations of the conven- 
tion, should be deemed and taken to be of no 
force or effect. Some further proceedings took 
place ; and the disagreeing votes of the two 



Sec Part ri. No. V. 



[ 140 3 

houses were at last reconciled by a committee of 
conference, at whose recommendation the decla- 
ratory bill was passed by the House of Represen- 
tatives, and became a law. 

It may also be expedient to remind the reader 
of what took place in the House of Representa- 
tives under the administration of General Wash- 
ington, as to the legislative provisions necessary 
to carry the British treaty of 1794 into eifect. In 
the debate on this subject, it was contended that 
the constitution having provided that all treaties 
made under the authority of the United States 
should be the supreme law of the land ; every 
treaty being a contract between the nations who 
are parties to it ; and the treaty with Great Bri- 
tain having been ratified by the President with 
the advice and consent of the Senate, a refusal 
by the House of Representatives to provide the 
means of carrying it into effect, was consequently 
a violation of the treaty, and a breach of the 
national faith. On the other hand, it was insisted 
that a treaty which required an appropriation of 
money, or any other special legislative provision to 
carry it into effect, was not, so far, of binding obli- 
gation, until Congress had adopted the measures 
necessary for that purpose. The House of Repre- 
sentatives ultimately passed a resolution, calling on 
the President to lay before them the instructions 
to Mr. Jay, the minister by whom the treaty had 
been negociated, and the correspondence and 
other papers, except so far as they were improper 
to be disclosed on accoimt of pending negocia- 



[ 141 ] 

tions. President Washington declined comply- 
ing with this request ; stating that a treaty, when 
duly made by the President and Senate, became 
the supreme law of the land ; that the assent of 
the House of Representatives was not necessary to 
its validity ; and therefore the papers requested 
could not properly be required for the use of the 
House, unless for the purpose of impeachment, 
which was not stated to be the object of the call. 
The House thereupon passed resolutions disclaim- 
ing the power to interfere in the making of trea-' 
ties, but asserting its right, whenever stipulations 
were made on subjects within the legislative pro- 
vince of Congress, to deliberate and decide as to 
the expediency of carrying them into effect.* 



* At the session of the Court, 1815, Mr. Pinkney still con- 
tinued his l.if)ours at the national bar, where he frequently came 
in copi?fct with the great abiliiies of Samuel Dexter. 

Mr. Dexter, who died soon after this term, may be pronoun- 
ced one of the ablest men this country has produced. The man- 
ner in which he combined the various talents and attainments of 
the common lawyer, the civilian, and the statesman, may be 
appealed to as a striking example of those expansive views and 
liberal studies which distinguish the more eminent advocates at 
the American bar. 

He was born at Boston in the year 17^1 j and was the second 
son of Samuel Dexter, an eminent merchant of that city. His 
father was a man of acute understanding, and an ardent lover of 
his country. In those struggles between the provincial legis- 
lature of Massachusetts and the royal governors, which precpded 
ant! prepared the revolution, he bore a prominent part. He was 
repeatedly negatived by the Governor as a counsellor, until so 

19 



[ 142 ] 

In March, 1816, Mr. Pinkney was again called 
into the diplomatic service of his country. In or- 
der to understand the motives which had repeat- 
edly induced him to go abroad in the same service, 
it is necessary to adverf to some of the peculiar 
circumstances connected with his brilliant success 
at the bar. This success was as much the effect 
of extraordinary diligence and labour as of his 



constantly was he re-elected, that it was not thou<,'ht prudent to 
persist in rejecting him. In 1774, he had the signal honour of 
being negatived by Governor Gage, in company with Bowdoin 
and Winthrop, by thp " express commands of his Majesty.'' 
The pen of this eminent patriot is to be traced in the answers to 
the Governor's speeches, and the various state papers of the 
day ; which have so long been the tUeme of general admiration 
for their manly style, their perspicuous argument, and their firm 
and bold tone of remonstrance against the oppressive measures 
of the British government. He lived to see his covintry free and 
happy ; and the evening of his days was spent in studies con- 
nected with the noblest speculations in which the human mind 
can be engaged. These studies, begun and continued for his 
own private satisfaction, resulted in the establishment of a pro- 
fessorship of Sacred Literature in the University at Cambridge, 
which was founded by his testament. 

His son was graduated at this university in 1781. With such 
a paternal example, the path of public and private virtue was 
open before him. After being admitted to the bar, he rose ra- 
pidly to eminence in his profession, and in the public councils of 
his native State. He was soon elected to Congress ; at first as 
a member of the House of Representatives, and afterwards as 
a member of the Senate. He distinguished himself as an able 
debater, at a period when both houses of the national legislature 
were adorned with the presence of many eloquent statesmen ; 



[ 143 ] 

genius and rare endowments of mind. His con- 
tinued application to study, writing, and public 
speaking, which a physical constitution as power- 
ful as his intellectual enabled him to keep up 
with a singular perseverance, was one of the most 
remarkable features of his character. He was 
never satisfied with investigating his causes, and 
took infinite pains in exploring their facts and 



and was successively appointed Secretary of War, and of the 
Treasury, under the administration of President Adams. On 
the change of administration, in 1801, he resigned his official 
station, and resumed the practice of his profession ; but he never 
remained a silent or indifferent spectator of the dissentions and 
dangers of his country. " The prerogative of the mind of Mr. 
" Dexter was a right to think for itself;" and on the declaration 
of war with Great Britain in 1812, he separated from the politi- 
cal connexion with which he had hitherto acted. 

He took a zealous part in promoting the interests of learning, 
and devoted his leisure to the same studies which had engrossed 
so much of the attention of his father. He was deeply grounded 
in the doctrines of Christianity, and the testimonies upon which 
their credibility is rested. They habitually guided his conduct 
in life, and he strengthened their influence by private meditation 
in that retirement which was so congenial to his disposition.* 

The features of the intellectual character of Mr. Dexter pre- 
sented a strong contrast with those of Mr. Pinkney. He had 
cultivated his powers by silent meditation and reflection, rather 
than by the study of books. Without being at all deficient in 
mere technical learning, he relied mainly upon his own distin- 
guishing faculties, and in his legal investigations sought for those 



* The above account is principally compiled from a notice which appear- 
ed in one of the Boston newspapers soon after Mr. Dexfer's decease. 



[ 144 3 

circumstances, and all the technical learnin;o^ con- 
nected with them. He constantly continued the 
practice of private declamation as a useful exer- 
cise, and was in the habit of premeditating his 
pleadings at the bar, and his other public 
speeches, — not only as to the general order or 
method to be observed in treating his subject, the 
authorities to be relied on, and the leading topics 



original j)rinciples which lie at the foundation of every civilized 
code. His forensic style vk'as marked by a strong metaphysical 
logic, combined with great purity and simplicity of diction ; and 
he unfolded the most jjerplexed and intricate questions of public 
and private law with a power of analysis which seemed almost 
intuitive. In the course of his investigations he frequently 
arrived at the same conclusions with tiiose who pursued the more 
labiuious process of reasoning, merely from analogy and prece- 
dents ; and often found himself sustained by the authority of a 
Scott or a Mansfield, when he was not aware that he was tread- 
ing in the footsteps of those great jurists. At other limes he 
confiiraed and strengthened the authority of the oracles of the 
law b}' new inductions and fresh illustrations drawn from his 
own capacious inti llect. Less attentive to the forms and analo- 
gies of technical law, than to the princi|)les of natural equity, his 
mind was enlarged by a philosophical view of universal jurispru. 
dence ; and to him might be applied what Cicero says of Sulpi- 
cius : — " iNeque ille magis jurisconsultus quam justitise fuit : ita 
ea quse proficisebantur a Legibus et a Jure civili semper ad 
Facilitatem I' quitatemque nferrebat.''' But it is higher praise 
and equally well merite(i, that in him the character of the advo- 
cate seemed to borrow a new lustre from tiiat of tlie jihilosopher 
and the patriot ; that like the illustrious Roman referred to, — 
^' in his political conduct he was always the friend of peace and 
" liberty ; moderating the violence of opposite parties, and dis- 
'"' couraging every step towards civil dissentions," 



[ 145 ] 

of illustration, but frequently as to the principal 
passages and rhetorical embellishments. These 
last he sdnietimes wrote out beforehand ; not that 
he was deficient in facility or fluency, but in 
order to preserve the command of a correct and 
elegant diction. All th«jse who have heard him 
address a jury, or a deliberative assembly, know 
that he was a consummate master of the arts of 
extemporaneous debating. But he believed, with 
the most celebrated and successful orators of an- 
tiquity, that the habit of written composition is 
necessary to acquire and preserve a style at once 
correct and graceful in public speaking ; which 
without this aid is apt to degenerate into collo- 
quial neglio-ence, and to become enfeebled by te- 
dious verbosity.* His law papers were drawn 

* A writer in the Edinburgh Review, referring to this practice 
of the ancients, quotes the fallowing passage from Mr. Broug- 
ham's Inaugural Discourse, on his election as Lord Rector of the 
University of Glasgow. " I should lay it down as a rule admit- 
ting of no exception that a man will speak well in proportion as 
lie has written much ; and that with equal talents, he will be the 
finest extempore speaker when no time for preparing is alUtwed, 
who has prepared himself the most sedulously when he had an 
opportunity of dehvering a premeditated speech. All the ex- 
ceptions, I have ever heard cited to this principle, are apparent 
ones only," &c. The reviewer then proceeds to mention some 
examples of this practice. " Pericles, we learn, — Pericles, v.i 
whose astonishing powers an attempt has been made to convey 
an adequate idea by affirming of him that he thundered, a/id 
lightened, and shook all Greece, — a man of business, too, (as 
Mr. Hume justly observes of him, if ever there was one,) pre- 
pared himself by written composition, and first, introduced the 

practice — Tgairsc y^XTrroy Xoyit sv S'lKo.rrHfia uvt, ray Wfa xurov it)(_iS'ia- 



i; 146 ] 

up with great care ; and his written opinions were 
elaborately composed both as to matter and style ; 
and frequently exhausted, by a full discussion, the 
subject submitted for his consideration. If to all 
these circumstances, be added the fact that he 



lovrav. And this it will be remembered was done at Athens, 
where the people were, according to Demosthenes, the readiest, the 
quickest, and the most expert at extempore composition. It by 
no means follows, that a person of experience and study, if pre- 
pared with regular and set passages, (Lord Erskine, we believe, 
had written down, word for word, the passage about the Savage 
and his bundle of sticks, in his speech on Stockdale's trial,) is, 
when those passages are ended, like a swimmer who goes to the 
bottom the very moment he loses his corks. Nabit sine cortice ! 
The mind, having acquired a certain excitement and elevation, 
and received an impetus from the tone and quality of the matured 
and premeditated composition, perseveres in the same course, and 
retains that impetus after the impelling cause shall have died 
away." 

Mr. Moore, in his interesting life of Sheridan, remarks, as one 
of the striking characteristics of that extraordinary person, the 
great degree of labour and preparation which his productions, 
both as an orator and a writer, cost him. " He never made a 
speech of any moment, of which the sketch, more or less detail- 
ed, has not been found among his papers — with the showier pas- 
sages generally written two or three times over (often without 
any material change in their form) upon small detached piecps of 
paper, or on cards. To such minutiae of effect did he attend, 
that I have found, in more than one instance, a memorandum 
made of the precise place in which the words ' Good God, Mr. 
Speaker,' were to be introduced. These preparatoi-y sketches 
are continued down to his latest displays ; and it is observable 
that when from the increased derangement of his affairs, he had 
no longer leisure or collectedness enough to prepare, he ceased 
to speak." * 



[ 147 ] 
engaged in the performance of his professional 
duties with unusual zeal, always regarding his 
own reputation as at stake, as well as the rights 
and interests of his client, — and sensibly alive to 
every thing which might affect either, and that he 
spoke with great ardour and vehemence ; it must 
be evident that the most robust constitution would 
not be sufficient to sustain such intense and unin- 
termitted labour, wdiere every exertion was a con- 
test for victory, and each new success a fresh 
stimulus to ambition. He, therefore, found it ne- 
cessary to vary his occupations, and to retire alto- 
gether from the bar for a season, in order to refresh 
his wearied body and mind, with the purpose of 
again returning to it, with an alacrity invigorated 
and quickened by this temporary suspension of 
his professional pursuits. He was thus induced 
to accept the appointment of Minister Plenipo- 
tentiary to the court of Russia, and of special 
Minister to that of Naples. Soon after this dou- 
ble mission had been conferred upon him, in a 
conversation with one of his friends, he said : 
" There are those among my friends who wan- 
der that I will go abroad, however honourable the 
service. They know not how I toil at the bar ; 
they know not all my anxious days and sleepless 
nights; 1 must breathe awhile ; the bow forever 
bent will break :" "Besides," he added, " I want 
to see Italy : the orators of Britain I have heard, 
but I want to visit that classic land, the study of 
whose poetry and eloquence is the charm of my 



[ 148 ] 
life ; T shall set my foot on its shores with feelings 
that I cannot describe, and return with new en- 
thusiasm, I hope new advantages, to the habits of 
pu!)lic speaking." 

On this occasion he published the following 
Address to his constituents : 

"Fellow-Citizens — My acceptance of an appointment as 
the Minister Plenipotentiary <)f the United States to Russia, makes 
it necessary that I should resign my seat as one of your Repre- 
sentatives in Congress. I am conscious that I owe you an apo- 
logy for having attempted to hold it even for a single day, rather 
than for this tardy resignation of it ; and I assure you if I had 
acted upon my own judgment, instead of the suggestions of 
friends, who hoped that I should find leisure to be of some use 
to you, I should long since have given you an opportunity of se- 
lecting a better representative in my place. I was persuaded 
before the present session commenced, that the duties of my pro- 
tessicm, which a long course of public employment had rendered 
indispensible to my family, would press so urgently upon me as 
to compel me to seem careless of your interests. The event has 
verified that persuasion. During the greater part of this session 
I have been incessantly occupied in courts of justice, and have 
been scarcely able to give such attendance in the House of Repre- 
sentatives as would allow me to vote upon the most important 
questions. To mix much in the discussion of those questions, 
greatly as I desired to do so, was impracticable. If I had re- 
mained at the bar, therefore, I should have thought it incumbent 
upon me, after such an experiment, to ask your permission to re- 
tire from the post in which your partiality had stationed me ; con- 
vinced that it would be impossible for me to do justice in it either 
to you or myself, without the utter neglect of what I owe to 
those who depend upon me for support. 

"I beg you, fellow-citizens, to believe that T have not willingly 
been an inattentive servant, and that, as I was proud of the high 
distmction which you had conferred upon me, I should have me- 
rited it by a close appHcation to your concerns, if I had been aj; 



[ 149 ] 

liberty to do so. I feel assured that I may rely upon your 
known liberality for my justification in this respect ; and, while I 
offer you my grateful thanks for the proof of confidence with 
which you have honoured me, and that too in a season of dan- 
ger and trial, which has now passed away, I pray you to be con-' 
vinced thai you will always find in me- a faithful friend, devoted 
to your honour and prosperity, in whatever situation I may hap- 
pen to be placed. 

WM. PINKNEY." 



Mr. Pinkney embarked, for the purpose of 
proceeding on his foreign missions, on board the 
Washington, a ship of the line, composing a part 
of our Mediterranean squadron, under the com- 
mand of Commodore Chauncey, and landed at 
Naples on the 26th of July, 1816. The object 
of his mission to the Neapolitan court was to de- 
mand from the present government of Naples in- 
demnity for the losses which our merchants had 
sustained by the seizure and confiscation of their 
property in 1809, during the reign of Murat. Af- 
ter he had fulfilled the duties of this special mis- 
sion, he was to proceed to St. Petersburg as the 
minister resident of the United States. 

On his arrival at Naples he immediately appli- 
ed himself to the business with which he was 
charged, and after various conferences with the 
Marquis di Circello, the Minister of Foreign Af- 
fairs, he addressed a note to that minister, con- 
taining an elaborate argument upon the responsi- 
bility of a nation for wrongs done and obligations 

20 



[ 150 ] 

incurred under its actual rulers, upon a subse- 
quent revolution in the government which may 
stamp those rulers with the character of usurpers 
in the view of their successors.* 

The Neapolitan minister evaded giving any 
answer to this note, until after Mr. Pinkney's 
departure from Naples, which he was obliged, by 
his instructions, to leave, in order to repair to his 
post at St. Petersburg ; and, as is well known, 
the Neapolitan government refused to admit the 
justice of the demand which he was directed to 
present for its consideration. 

During Mr. Pinkney's stay at Naples he receiv- 
ed information from Mr. Harris, our Charge 
d' Affaires at St. Petersburg, that the Emperor of 
Russia having taken offence at the conduct of the 
United States' government in the affair of Mr. 
Kosloff, the Russian Consul-General in this coun- 
try, had forbidden Mr. Harris from appearing at 
court. Kosloff had been arrested, upon the accu- 
sation of having committed a horrible crime ; and 
was indicted for the offence in the State Court of 
Pennsylvania. A motion was made by the pri- 
soner's counsel to quash the indictment for want 
of jurisdiction in the Court, upon two grounds : 
1st. That consuls are privileged by the law of 
nations from criminal prosecutions in the tribunals 
of the country where they reside. 2dly. That by 



* State Papers, vol. xi. p. 487. 



[ 151 ] 
the constitution of the United States exclusive 
jurisdiction in all cases affecting ambassadors, 
other public ministers, and consuls, is conferred 
upon the Courts of the Union. The first point 
was determined in the negative ; but it was held, 
that although foreign consuls are amenable to 
the criminal justice of the country where they 
reside, yet the national constitution has conferred 
upon the Courts of the United States exclusive 
jurisdiction of all offences committed by them in 
this country. But the State Court did not under- 
take to determine by what law he was to be tried, 
in the Courts of the Union ; and he was after- 
wards discharged without a trial, upon the doubts 
which I have before stated to exist among our 
jurists, whether the Courts of the United States 
have power to try and punish offences committed 
by a person, over whom they have, by the consti- 
tution, jurisdiction in all cases ; but where there 
is no express act of Congress defining the offence 
and affixing the punishment : or, as it has com- 
monly been expressed, whether the national 
Courts have any common law jurisdiction. 

Mr. Pinkney deemed this matter of sufficient 
importance, in respect to the propriety of his pre- 
senting himself as the minister of the United 
States at the Russian court, so long as the diffi- 
culty subsisted, to induce him to send forward 
Colonel King, the Secretary of his Legation, with 
the following letter to Mr. Harris : 



[ 152 ] 

" Vrivatc. " Naples, September IJ, 181 6. 

" Sir, — I received last night your letter of the 30th of July, 
with its enclosure. The light in which the Emperor has seen 
the affair of Mr. KoslofT is very much to be regretted ; but I 
have no orders to offer any explanations upon it, alihough the 
means of explanation have been put into my hands by the De- 
partn)enL of State. I am in possession of copies of all the mate- 
rial papers belonging to the case ; and consequently knov/ and 
am able to say with perfect confidence, that the government of 
the United States had not, either in fact or constructively, any 
participation in the act of which the Emperor seems particularly 
to complain. I am not, however, authorized to make a formal 
disavowal of that act, because (as I presume) it had not occurred 
to the government that it could be necessary, or would be de- 
sired. 

" It is impossible to understand this affair ever so slightly 
without perceiving that it was altogether a judicial proceeding, 
in the common course, by a magistrate, and by officers of the 
State of Pennsylvania, i»ver whom the government of the Union 
could exert no preventive control, (even if it had divined their 
intention to arrest and imprison Mr. Kosloff,) and against whom 
jt could institute no prosecution, after the act was done, with a 
view to their punishment. It is plain vpon the face of the trans- 
action that the government of the United States has given no 
cause of offence to Russia, ejtlier by what it omitted to do, or by 
what it did. In truth, it omitted nothing which it could, and 
ought to have done ; and, in all that it did, manifested the ut- 
most possible respect to the Emperor. It endeavoured, through 
its law officer (the District Attorney for Pennsylvania) to put 
an end to the prosecution, by placing INir. Kosloff, as Russian 
Consul-General, under the peculiar protection, either of the law 
of nations, or of the constitution of the United States ; and the 
prosecution was terminated by a decision of the Court of Penn- 
sylvania, that, although a consul is not entitled (as undoubtedly 
he is not) lo the immunities which appertain by thejMS gentium 
to ministers, he is nevertheless not amenable in America to a 
State tribunal The government could go no farther ; and this 



[ 153 ] 

was the whole of its connexion with Mr. Kosloflf's case, with the 
exception only of its refusal afterwards to issue an order, upon 
Mr. Daschkoff's application, for the trial of Mr. Kosloffin a tri- 
bunal of the United States ; the Attorney-General having re- 
ported that according to a recent adjudication of the Supreme 
Court, such a trial could not be had. 

" When I left America, I do not believe any body supposed 
that the Emperor had taken, or would take, umbrage, at Mr. 
Kosloflf's afl'air. In my instructions, therefore, (which breathe 
nothmg but esteem and reverence for the Emperor,) it is not even 
mentioned. Yet I am sure that if the American government had 
anticipated the feeling which it has excited in the Emperor, it 
would have hastened to prevent it by such explanations as could 
not have failed to be satisfactory. The disposition of the go- 
vernment of the United States to cultivate the most amicable 
relations with his Imperial Majesty is known to all the world ; 
and if it has not been forward to explain the case of Mr. Kosloff 
before explanation was required, it could only be because the 
consciousness of its sentiments of respect and kindness stood in 
the way of even a conjecture that they would be brought into 
question. 

« " I take for granted, however, that as Mr. Daschkoff was di- 
rected to ask reparation, the misunderstanding has long since 
been removed, notwithstanding the strong step adopted by the 
Emperor in limine, of forbidding the appearance at court of the 
Charge d'Affaires of the United States. It is not improbable 
that I shall receive in a i^w days (by a despatch vessel expected 
by Commodore Chauncey) some communication from the De- 
partment of State on this matter ; and I can scarcely doubt that 
you have already received instructions concerning it. At any 
rate, I persuade myself that nothing serious can ultimately grow 
out of such a difficulty. But still it would be improper that 1 
should present myself before the Emperor as the minister of my 
country, until I know with certainty that the diflRculty has wholly 
ceased, or until I have such further instructions iiS will enable 
me to remove it, or will make it my duty to encounter it. While 
you are desired to absent yourself from court, it would be rash 
in me-to hope, (at least until I have power to do what it seems 



[ 154 ] 

is indisjjeusible, i. e. to disavow hy the express command of my 
governmeiit, the conduct of the magistrate, &c.j to be received 
with the respect which is due to those whom I have the honour 
to represent. Upon a point so delicate, I will not unnecessarily 
put any thing to hazard. 

" I have, therefore, determined to send to you immediately, 
with this letter and all the papers above alluded to. Colonel King, 
(the si-cretary of my legation here and in Russia,) and to follow 
myself as far as BerUn, as soon as my business here is finished. 
My mission to this court will be brought to a close within the 
next fortnight ; and I shall then lose no time in proceeding to- 
wards St. Petersburg until I reach Berlin, where I shall wait to 
hear from you, unless I hear from you sooner, as I hope I shall. 
Colonel King, who knows perfectly my views, will supply ver- 
bally what may be deficient in this letter." 

The following is an extract of a letter from 
Mr. Pinkney to Mr. Monroe, dated October 7th, 
1816. 

" I am at last on the point of quitting Naples. I have beard 
nothing further from Mr. Harris, and Mr. King has not written 
to me since he left us ; but I shall go on towards St. Petersburg 
as rapidly as I can, in the confidence that the affair of Kosloff has 
been settled. My health has suffered here. The climate looks 
well enough, (not better however than our own,) but it relaxes and 
enfeebles much more than ours. The so much vaunted sky of 
Italy appears to me (thus far) to be infinitely inferior to that of 
Maryland. Every thing here has been overrated by travellers, 
except the Bay of Naples, and the number and clamorous impor- 
tunity of the common beggars, and the meanness of the beggars 
of a higher order, which it is absolutely impossible to overrate. 
After all, our country gains upon our affection in proportion as 
we have opportunities of comparing it with others. 

" About this time, the American people, as I trust, are em- 
ployed in preparing to offer you the only recompense in their 
power (a flattering one it is to any man) for your long and faith- 
ful services. I feel confident that before this reaches you it will 



[ 155 ] 

be known that yourfellow-citizens think you entitled, by a life of 
unsullied honour and enlightened patriotism, to be preferred to 
all others as their chief magistrate. It will depend upon that 
whether I continue in public life or not. My wish at any rate (I 
think I shall not change it) is not to remain long at St. Peters- 
burg. The station in London is full, and hkely to be so, and 
my desire of course will be (as I now believe) to return to Ame- 
rica about the time I mentioned to you, that is, after a lapse of 
two years from the epoch of my departure from it. The proba- 
bility is, that in that event, I shall station myself permanently at 
Washington, and that 1 shall there resume my professional pur- 
suits." * * * 

Mr.Pinkneysoon afterwards proceeded through 
Rome, and the other principal Italian cities, to 
Vienna, and finding the obstacle alluded to in 
the above letters removed, continued his jour- 
ney to St. Petersburg, where he remained about 
two years. 

In a letter to his daughter, Mrs. Cumberland 
D. Williams, dated the 16th of August, 1817, he 
speaks of his health, and that of his family being 
affected by the climate, but that every body had 
been so kind to them that they almost forgot that 
the climate did not suit them. He mentions that 
he had requested his recall, and hoped before 
long to return home, to leave the United States 
no more. In the same letter, he gives the follow- 
ing sketches of some of the members of the Im- 
perial family. 

*****«■*«* 

" The Empress Mother is still a charming woman, and when 
young must have been extremely handsome. She may be said 
to do th honours of this splendid court, and it is fit that she should. 
Her manners are infinitely pleasing, at the same time that they 



[ 156] 

are lofty ; and she is a perfect mistress of the arts of conversa* 
tion. She is, moreover, exemplary in all the relations of life, and 
is beloved for her goodness by all classes. 

" Of the reigning Empress it is impossible to speak in ade-* 
quate terms of praise. It is necessary to see her to be able to 
comprehend how wonderfully interesting she is. It is no exag- 
geration to say, that with a slight abatement for the effects of 
time and severe affliction, (produced by the loss of her children,) 
she combines every charm that contributes to female loveliness, 
with all the qualities that peculiarly become her exalted station. 
Her figure, although thin, is exquisitely fine. Her countenance 
is a subduing picture of feeling and intelligence. Her voice is 
of that soft and happy tone that goes directly to the heart, and 
awakens every sentiment which a virtuous woman can be ambi- 
tious to excite. Her manner cannot be described or imaLined. 
It is graceful, unaffectedly gentle, winning, and at the same time 
truly dignified. Her conversation is suited to this noble exterior. 
Adapted with nice discrimination to those to whom it is address- 
ed, unostentatious and easy, sensible and kind, it captivates in- 
variably the wise and good, and (what is yet more difficult) 
satisfies the frivolous without the slightest approach to frivolity. 
If universal report may be credited, there is no virtue for which 
this incomparable woman is not distinguished : and I have rea- 
son to be confident from all that I have observed and heard, that 
her understanding (naturally of the highest order) has been em- 
bellished and informed to an uncommon degree by judicious, and 
regular, and various study. It is not, therefore, surprising that 
she is alike adored by the inhabitant of the palace and the cot- 
tage, and that every Russian looks up to her as to a superior be- 
ing. She is, indeed, a superior being, and would be adored, al- 
though she were not surrounded by imperial pomp and power." 



The following extract of a letter from a friend 
of the Editor, who was much in Mr. Pinkney's 
society at St. Petersburg, will explain his man- 
ner of life and the nature of his pursuits while 



[ 157 ] 

in that capital, as well as the estimate formed of 
his talents and the extent of his attainments by a 
very intelligent observer. 

" I arrived in St. Petersburg in the month of June, 18l7. I 
carried a letter of introduction to Mr. Pinkney from our friend, 
Mr. Justice Story. Mr. P. received me at once with the great- 
est kindness and hospitality. He told me almost the first time I 
saw him, that he should not make a single dinner for me, or re- 
ceive me with ceremony ; but if I would consider myself a mem- 
ber of his family, and take a seat at his table constantly, when 
not otherwise engaged, he should be gratified. As I soon found 
he was in earnest, I accepted his offer almost to its full extent. I 
passed about two months in the city, lodging at the same hotel 
with him, and <iomesticated with his family. I saw him every 
day, and at almost every meal ; and the recollections I have of 
the pleasure enjoyed in his society, are amongst those I shall 
longest retain. 

" Of his past life, he did not speak much. I inferred, how- 
ever, that he had always been a hard student, and considered 
himself a laborious and thorough scholar in those branches of 
human knowledge to which h'e had more particularly devoted 
himself. I remember that he once said to me, that he considered 
the late Mr. Chief Justice Parsons and himself the only men in 
America who had thoroughly studied and understood Coke Lit- 
tleton. He appeared to estimate the legal acquirements of our 
professional men as of little extent, generally speaking, and to 
think he gave himself but little credit in thinking that he had 
learnt more law than any other man in the country. 

" He kept himself very much in private, living so (as he said) 
from motives of economy. He was in lodgings at the Hotel de 
I'Europe, and saw no company ceremoniously — that is, he gave 
no dinners, &c. He had made it known to the diplomatic cir- 
cle there when he first arrived, that he should live in that style, 
and therefore could not reciprocate their civihties. They, how- 
ever, visited him a good deal, and he accepted their invitations 
frequently. I understood from various quarters, and inferred 
from what I saw, that he stood very particularly well with the 

21 



[ 158 ] 

Emperor, his family, and principal ministers. His personal ha- 
bits were very peculiar. His neatness, and attention to the 
fashionable costume of the day, were carried to an extreme, 
which exposed him while at home to the charge of foppery and 
affectation. But it should be remembered how large a portion of 
his life he had spent abroad, and in the highest circles of Euro- 
pean society. Though he undoubtedly piqued himself upon be- 
ing H finished and elegant gentleman, yet his manners and habits 
of dress were, as it always seemed to me, acquired in Europe; 
and so far from being remarkable there, they were in exact ac- 
cordance with the common and established usages of men of his 
rank and stati(m. All who have been at any of the European 
courts know that their statesmen and ministers consider it a ne- 
cessary part of their character to pay great attention to the ele- 
gancies and refinements of life, — and after a day passed in the 
laborious discharge of their duties, will spend their evenings in 
society, and contribute quite their share of pleasant trifling. It is 
their maniere d^etre. 

During the summer that I passed with Mr. Pinkney,his person- 
al habits were very regular. He breakfasted late, and heartily. 
Then he retired to his study, and we saw him no more until 
dinner at six o'clock. The evening he passed with his family, or 
in visiting. He took very little exercise, eat and drank freely, 
and I thought suffered occasionally from the usual effects of a 
plethoric habit, with much indulgence as to food, and no atten- 
tion to exercise. Undoubtedly his extreme attention to personal 
cleanliness contributed much to preserve his health. His family 
saw little company at home or abroad ; he appeared to be ex- 
tremely fond of them, and satisfied with passing his evenings in 
their society. 

'< As to his intellectual character, and his talents and attain- 
ments as a lawyer, a statesman, and" an orator, I shall say no- 
thing. I do not pretend to measure the extent of his mind, or 
to add any thing to the general voice which has placed him at 
the head of ihe great men of our country. As to his attainments 
and his tastes in minor matters — besides a competent share of 
classical learning, he had a general acquaintance with modern 
literature : but I do not believe that he was fond of light Eng- 



[ 159] 

lish literature ; though he seemed to make it a point of keeping 
along with the age, and, therefore, read all the popular poems, 
reviews and novels, and talked about them very well. But his 
great forte (as to his literary accomplishments) was his thorough 
and exact acquaintance with the English language — with its best 
models of diction — with its significations, its grammar, and its 
pronunciation. Upon this he prided himself exceedingly, and 
well he might ; for you knt)W the singular art and skill with 
which he displayed his mastery over his own language — his pow- 
er of using it with astonishing force, elegance, and accuracy in 
the simplest conversation upon common topics,. in his legal argu- 
ments which were to instruct and influence the finest minds in the 
country, and in the debates of the senate which were to affect 
permanently and vitally the destinies of the nation." 

The following is a letter written to Mr. Mon- 
roe by Mr. Pinkney just before his leaving Rus- 
sia. 

" St. Petersburg, 21st January, 1818. 

" My Dear Sir, — I had the honour to receive to-day (and I 
cannot tell you with how much pleasure) your very kind letter 
of the lOth of November. It came by the route of Sweden, but 
not accompanied by any thing from Mr. Rush or Mr. Adams, 
or by my expected recall. I presume that the next mail (by the 
route of Hamburg) will bring me all that is wanting to justify my 
return to the United States. 

" I pray you to be assured that I view your forbearing to name 
me for the court of England exactly as you do, and that I re- 
joice you took that course. It would certainly have been ha- 
zardous ; and, moreover, I had no wish to go to England, or to 
remain any longer abroad. The office of Attorney-General 
would not have suited me ; as I have some time since taken 
measures for resuming my residence at Baltimore, where I hope 
to retrieve the losses which my missions could not fail to inflict 
upon me in a pecuniary sense. Those losses are, indeed, some- 
what severe ; but they have been incurred in the public service, 



[ 160 ] 

and if Providence spares and assists me, will not long be felt. 
Your friendly wishes are really invaluable. I do not want officey 
but I prize highly your esteem. My desire is to be a mere 
lawyer, and ro show my disinterested respect and affection for 
you in a private station. For this reason I beg of you to think 
of me only as a friend for whom office has long since ceased to 
have any charms, and who only courts opportunities of proving 
his devotion to the character and interests of his country, and his 
attachment to those for whom he professes regard and reverence. 
Do me the favour always to regard me in this light, and you will 
not be disappointed in me. 

" Notwithstanding my anxiety to get home, I shall quit this 
station with some regret. They have been very good to me 
here. The state of the world too requires that we should have 
a good stock of prudence at this court ; and I feel quite sure that 
on that score I should never be found deficient. My place, how- 
ever, will doubtless be supplied by a man much more able and 
distinguished, and at the same time of equal discretion. You 
cannot put too much ability and character into this mission. One 
of the foremost men of our country ought to be selected for it. 
A Charg«i d' Affaires may be left here for some time ; but when 
a Minister Plenipotentiary is appointed, lie should be of marked 
political rank. My own health, and that of my family, has re- 
cruited a little. My intention, therefore, is to set out for Ham- 
burg as soon as my recall has arrived, and I have had my au- 
dience of the Emperor, who is expected in about ten days. At 
Hamburg 1 think I shall be able to get a ship for my homeward 
voyage. 

" Accept ray unfeigned thanks for your uniform kindness, 
which is deeply impressed upon my heart, and my assurances of 
unalterable respect and attachnient." 



Soon after Mr. Pinkney's return from Russia, 
a controversy arose respecting the right of the 



[ 161 ] 

State legislatures to tax the Bank of the United 
States, which was brought before the Supreme 
Court in the year 1819, upon a writ of error to 
the Court of Appeals of Maryland, which had 
given judgment ag^iinst the bank for the penalties 
provided for not paying the tax imposed by a law 
of that State. On this occasion, Mr. Pinkney 
had given his opinion that the State law was un- 
constitutional, and had be(?n retained by the Bank 
to argue in support of that opinion. 

The following is the exordium to the argument 
which he delivered. 

" In the catalogue of those petty vexations, which arc said to 
constitute the miseries of human life, I know of notliing more 
ii'ksome than to be compelled to speak to a well informed tri- 
bunal upon topics that have lost all the grace of novelty, upon 
which genius and learning have been so often exercised, that he 
who seeks to be either smart or profound in the discussion of 
them, can scarcely f^il to be accused of pilfpi i;ig the felicities of 
expression of some predecessor in the argument, or of appro- 
priating to his own use the sagacious refl ctiuns of some report, 
or pamphlet, or speech, on which, in the days of their freshness, 
an intellectual epicure might have delighted to banquet, but which 
endless repetition and long continued familiarity have robbed of 
almost all dignity and interest. 

" Such undoubtedly was, at the commencement of this debate, 
the situation of many of the topics which have been forced into 
it by our learned opponents (I may be permitted to say) against 
all the remonstrances of taste, if not of prudence ; and it will not 
be imagined thrit this their situation has been much improved by 
what has since occurred. On the contrary, it may in all reason 
be supposed that what was at first only threadbare, has now been 
worn to tatters ; and that consequently very little is left for me 
but miserable shreds and ragged odds and ends, the tristes re- 
liquicB of those who have gone before me. Such a predicament 



[ 162 ] 

is certainly not to be envied ; and, foreseeing, I would have 
avoided it. Accordingly, I made it my humble suit to the 
learned representatives here of that erring State of which I am 
an unworthy citizen, that we might not on this occasion, by un- 
hallowed rites, wantonly conjure up the ghost of a departed con- 
troversy ; that THE CONSTITUTIONALITY OP THE BANK, if it 

could not be assumed, might at least be submitted in respectful 
silence to this high court, to which our lucubrations, or rather 
our recollections, upon it, could hardly be expected to afford 
either pleasure or instruction. In an especial manner I urged to 
one of the learned gentlemen* (who has in his recent speech 
reconciled an admirable playfulness of fancy with great apparent 
severity of reasoning, and placed many a flowery wreath upon 
the grave and forbidding brows of metaphysical subtlety) my 
extreme repugnance to entering the lists with him upon so stale 
a quarrel. I said to him in the language of Dioraed, as reported 
by the ambassador of Latinus : — 

Ne vero. ne me ad tales impellite pugnas. 

But I obsecrated and deprecated in vain ; his sturdy and inexo- 
rable infidelity seemed to rejoice in the prospect of displaying 
itself with an ostentation worthy of better principles ; he ap- 
peared to expect, with feelings bordering upon transport, the 
approaching opportunity of pouring his heresies into our pious 
ears, and of disturbing, with the restless zeal of an obstinate 
sectary, that wholesome faith in the bosom of which we had 
sought and found, what man seldom finds, however industriously 
soever he may seek it. Tranquillity and Repose. The conse- 
quence is, that the question of the constitutionality op the 
BANK has risen, as it were, from the grave, and in its very 
shroud presents itself before you, to demand at last the honours 
of Christian burial, in such sort that it may hereafter hope to rest 



* Mr. Jones. 



[ 163 ] 

in peace, beyond the reach of the lawless incantations of these 
potent sorcerers and their confederates. 

" As for the cause itself, Sir, I ana not only ready to concede, 
but anxious to maintain, that the aggregate of the considerations 
which it involves, impart to it a peculiar character of importance • 
and that this tribunal, distinguished as it is for all that can give 
to judicature a title t(» reverence, is, in adjudicating upon it, in 
the exercise of its most exalted — its most awful functions. The 
legislative faculties of the government of the Union, for the pros- 
perity of the Union, are in the lists, not indeed upon the roman- 
tic and chivalrous principles of tilts and tournaments, but upon 
the sacred principles of the constitution. In whatever direction 
you look, you cannot but perceive the solemnity, the majesty of 
such an occasion. In whatever quarter you approach the sub- 
ject, you cannot but feel that it demands from you the firm and 
steady exertion of all those high qualities which the universal 
voice ascribes to those who have deviited themselves to the mi- 
nistry of this holy sanctuary. For myself, the importance of 
this cause, incapable as it is of being overvalued, does not 
dismay me ; it does but excite me to deal with it as I ought ; I 
am glad that it is of the deepest interest to us h11. I meditaie 
with exultation, not fear, upon the proud spectacle of a peaceful 
judicial review of these conflicting sovereign claims by this more 
than Amphictyonic council. I see in it a pledge of the immor- 
tality of the Union, of a perpetuity of national strength and glory, 
increasing and brightening with age, — of concord at home, and 
reputation abroad. 

" Our opponents think of the importance of this cause as I do. 
They have, therefore, put forth their whole power in the argument 
of it. All the graces of a ])olished elocution, within the reach of 
two of the learned counsel ; all that more robust and hardy wit, 
within the reach of the other, which makes a jest of the climate 
of Kamschatka and amuses itself with the frost of the Pole ; all 
the artifices of a cunning and disciplined logic more or less with- 
in ihe reach of all the learned counsel, have been exhausted upon 
it. We have had the affecting retrospections of Mr, Martin, up- 
on scenes ' quorum pars magna (or minima) fuit,' (for I will not 



[ 164 ] 

object to his amendment,* lest I should distress the modesty that 
'suggested it,) which scenes, luckily for the time of the court, had 
their commencement at an epoch considerably subsequent to the 
flood ; we have had the appalling, though elegant, prophecies of 
Mr. Jcmes, predicting political pestilence and war, as an almanack 
predicts cloudy weather and tempest ; and we have had the ur- 
gent instances of Mr. Hopkinson, that we should look neither back- 
wards nor forwards, but fix our intellectual gaze, with a laudable 
intensity, up^n the circumstances and necessities of the present 
moment. Indeed, what iiave we not had that could contribute to 
the credit of the learned counsel, without contributing to the pro- 
fit of the cause ? 

" It is proper, however, that I should in this place admit, that, 
although the speeches of the counsel on the other side have, with 
reference to the doctrines which they inculcate, left me as great 
an unbeliever as they found me, the speech of one of them has 
not wholly lost its effect upon me, since it has served to enhance 
the lively interest which I had before taken in this controversy. 
Tiie speecli to which I allude, was one which the most eloquent 
might envy, the most envious could not forbear to praise. It was 
a finely woven tissue of sophistry, tinctured with an occasional 
declamation, far more vivid than the hypocritical disclaimert 
which prefaced it could lead us to anticipate, and drapened with 
those captivating fiyures which fancy can bestow at will upon 
that which is intended to be the garb of delusion. In this speech, 
the Attorney for the District of Columbia indulged in frequent 
lamentations over tlie consequences which he foresaw, or affected 
to foresee, must inevitably result from that decision which every 
one feels and knows cannot fail to be pronounced in this cause. 
Rapt into future times, like the bards of old, he sung, upon that 
hypothesis, of internal resistance and commotions — ' of moving 
accidents by flood and field' — of direful struggles' and ' tremen- 



* Mr. Martin had said, in speaking of the transactions of the Convention 
that propos A the constitution of the Uoiied States, and of which be was a 
member, — quorum pars minima fui " 

+ .Vlr. Jones had in the outset of" his speech deplored his incapacity for all 
rhetorical or declamatory ornament. 



[ 165 ] 

dous convulsions' — that should shake the Union to its centre and 
bring it down in ruins upon our heads ! The domain of poetry 
xvas invaded, all nature was ransacked, for images which might 
recommend the wildest possibilities and probabilities as substi- 
tutes for the sober calculations o/ enlightened reason. These 
miserable state jealousies, which the learned counsel seems, 
in the language of Milton, to consider as ' hovering angels, girt 
with golden wings,' — but which, in my estimate of their charac- 
ter, attended like malignant influences at the birth of the 
constitution, and have ever since dogged the footsteps of its 
youth — may be said to have been summoned by him to testify in 
this cause, to give to this court their hysterical apprehensions and 
delirious warnings, to afflict our understandings with the palsy 
of fear, to scream us, as it were, into a surrender of the last, the 
only fortress of the common felicity and safety, by capitulating 
with those petty views and local feelings which once assailed us, 
in the very cradle of our independence, as the serpents of Juno 
assailed the cradle of Hercules, and were then upon the point of 
consigning us to everlasting perdition. 

" When principles, such as I have just adverted to, are an- 
nounced from a quarter which every thing that is excellent in in- 
tellect and morals contributes to make respectable, it is high time 
that we should be informed, by the authentic responses of the ap- 
pointed oracles of the constitution, in what spirit that consti- 
tution is to be interpreted ; — it is high time that we should be 
made to understand whether we are already relapsed into the 
more than infantine feebleness of the Confederacy, or whether 
we may yet venture to impute to the actual constitution that man- 
ly strength which can alone enable it to become the champion of 
the general prosperity against all those assaults to which, in the 
vicissitudes of human affairs, and according to the ordinary lot 
of human institutions, it cannot fail to be exposed. 

" Sir, it is in this view that I ascribe to the judgment that may 
be pronounced in this cause, a mighty, a gigantic influence, 
that will travel down to the latest posterity, and give shape and 
character to the destinies of this republican empire. It is not 
merely that it may stabilitate or pull down a financial and com- 
mercial institution called a Bank — however essential such an in- 
stitution may be to the government and country. I have a deep 

9c> 



[ 166 ] 

and awful conviction (which the speech of my learned friend' 
has confirmed) that upon that judgment it will mainly depend 
whether the constitution under which we live and prosper is to be 
considered, like its precursor, a mere phantom of political pow- 
er to deceive and mock us — a pageant of mimic sovereignty^ 
calculated to raise up hopes that it may leave them to perish, — 
a frail and tottering edifice, that can afford no shelter from storms 
cither foreign or domestic — a creature half made up, without 
heart or brain, or nerve or muscle, — without protecting power or 
redetming energy — or whether it is to be viewed as a competent 
guardian of all that is dear to us as a nation." 



It is to be regretted that the means no longer 
exist of completely restoring this admirable 
speech, which occupied three days in the de- 
livery, and contained an exposition of the leading 
principles to be applied in interpreting the consti- 
tution, which were made the foundation of the 
judgment pronounced by the Court exempting the 
national Bank from taxation by the respective 
States. I have, however, endeavoured, with the 
aid of my own notes taken at the time, and those 
of Mr. Pinkney, which have been since put into 
my hands, to recover the substance of his argu- 
ment.* 

Mr. Pinkney having been elected by the legis- 
lature of Maryland a Senator in Congress from 
that State, took his seat in the Senate on the 4th 
of January, 1820; and the bill from the House 



* See Part Second, No. VI. 



[ 167] 

of Representatives for the admission of Missouri 
into the Union, with a clause prohibiting^ the in- 
troduction of slaves into the new i;?tate, being 
under consideration, delivered, on the 15th of 
February, a very elaborate speech in opposition 
to the proposed restriction, of which I have col- 
lected some fragments. He insisted that Con- 
gress had no power by the constitution to impose 
such a condition upon the admission of a State 
into the federal Union.* 

The result of the discussion of this momentous 
question in Congress is well known. Mr. Pink- 
ney, in a letter to his son-in-law, Mr. Cumber- 
land D. Williams, dated the of February, 
says : 

" The bill for the admission of Missouri into the Union (with' 
out restriction as to slavery) may be considered as past. That 
bill was sent back again this morning from the House with the 
restriction as to slavery. The Senate voted to amend it by 
striking out the restriction, (27 <o 15) and proposed, as another 
amendment, what I have all along been the advocate of, a re- 
striction upon the vacant territory to the north and west as to 
slavery. To-night the House of Representatives have agreed to 
both of these amendments, in opposition to their former votes, 
and this affair is settled. To-morrow we shall (of course) recede 
from our amendments as to Maine, (our object being effected,) 
and both States will be admitted. This happy result has been 
accomplished by the Conference, of which I was a member on 
the part of the Senate, and of which I proposed the report which 
has been made. * « * * 

" I hope it will be possible for me to return to Baltimore on 



• See Part Second, No. VII. 



[ 168 ] 

Saturday for a tew days. A bankrupt law will, as I think, pass, 
although it will be much opposed. My assistance on that sub- 
ject will be necessary. My professional duties have been sacri- 
ficed to my political duties, and my constituents will, I trust, 
give me some credit for this. The Quakers have found my 
speech of 1789 in the House of Delegates (my second speech) 
in pamphlet form, and have sent it to members of both Houses. 
They have sent one copy to me. After a hasty perusal of it, I 
think it will not disgrace me ; and I should not care if they 
should think it worth while to republish it." 



In framing the complex political system by 
which the United States are governed, one of the 
most difficult problems which occurred, was the 
manner of determining controversies which might 
arise under acts of the local State legislatures 
conflicting with the constitution, laws, and trea- 
ties of the Union. All agreed in the necessity of 
declaring the supremacy of the latter, but the 
manner in which it should be practically enforced 
presented a question of great difficulty. One of 
the schemes presented to the Convention con- 
templated a revision by the federal government 
of all acts passed by the State legislatures, and 
a negative to be vested in the former in order to 
prevent the passage of laws repugnant to those 
of the Union. But it was finally determined, as 
a less objectionable means of accomplishing the 
same end, to extend the judicial power of the 
United States to all cases arising under the con- 



[ 169 ] 

stitution, laws, and treaties of the Union ; making 
the Supreme Court the appellate tribunal in such 
cases, with such exceptions and under such regu- 
lations as Congress might provide. Under this 
constitutional provision, instead of giving to the 
national Courts original jurisdiction of these 
cases, as might have been done, all that Congress 
has deemed it expedient to do, has been to pro- 
vide for the exercise of the appellate jurisdiction 
of the Supreme Court oyer all such cases arising 
in the State Courts. The jurisdiction had been 
exercised by the Supreme Court in this manner 
in a great variety of cases since the yetir 1789, 
and the constitutionality of the act of Congress 
was never questioned until 1815, when, on the 
reversal by the Supreme Court (in the case of 
Martin and Hunter) of a judgment of the Court 
of Appeals of the State of Virginia, and a man- 
date issued to the latter, that Court refused to 
obey the mandate, upon the ground that the con- 
stitution did not authorize Congress to vest the 
Supreme Court with appellate jurisdiction over 
the decisions of the State Courts. The question 
was again reviewed by the Supreme Court, and 
the jurisdiction solemnly determined to be con- 
stitutionally vested. The question was believed 
to be thus finally settled, but it was again agi- 
tated in 1821, in the celebrated case of Cohens 
against the State of Virginia. This case arose 
upon the act of Congress empowering the Corpo- 
ration of the City of Washington to authorize the 
drawing of lotteries for certain purposes ; and 



. [ 170 ] 

the principal question was, whether this Act ex- 
tended to authorize the Corporation to sell the 
tickets in such lotteries in those States where the 
selling of lottery tickets was prohibited by the 
local laws. Mr. Pinkney had given an opinion, 
in conjunction with other eminent counsel, (but 
which was drawn up by him,) that Congress 
migiit, under its power of exclusive legislation 
over the District of Columbia, authorize the Cor- 
poration of the City of Washington to sell its lot- 
tery tickets in any part of the Union, notwith- 
standing any State law prohibiting it, and that 
Congress had in fact, by the act now in question, 
authorized the Corporation to sell its lottery tick- 
ets throughout the Union.* The Court, however, 
deemed it unnecessary to consider whether the 
act of Congress would be constitutional, suppos- 
ing it to authorize the Corporation thus to force 
the sale of lottery tickets in States where it was 
prohibited by the local laws, because it was of 
opinion that the act did not purport in its terms 
to give such an authority to the Corporation. Mr. 
Pinkney was prevented by accidental circum- 
stances from arguing this question before the 
Court, but upon the other part of the cause, as to 
the appellate jurisdiction, he pronounced one of 
his most elaborate and able arguments. His 
reasoning in favour of the jurisdiction was adopt- 



* See Paet Second, No. VIII. 



[ 171 ] 

ed by the Court ; and it may now be regarded as 
one of those points of constitutional law which 
are most conclusively and satisfactorily esta- 
blished. 

Mr. Pinkney continued his professional labours 
at the session of the Court in 1822, with the 
same intense application and ardent desire of suc- 
cess which had marked his whole career. He 
also took a part in the preliminary discussions 
upon the Bankrupt bill in the Senate, and pre- 
pared himself for the debate upon the Maryland 
propositions relating to the appropriation of the 
public lands belonging to the Union for the pur- 
poses of education.* But his busy life was hur- 
rying to a conclusion. He had exerted himself irt 
the investigation and argument of a cause in 
which he felt peculiar interest, at a time when the 
state of his health unfitted him for application to 
study and business. On the 17th of February, 
he was attacked by a severe indisposition, which 
was, doubtless, produced by this effort. He men- 
tioned to a friend that he had sat up very late in 
the night on which he was taken ill, to read the 
Pirates, which was then just publi^^hed, and made 
many remarks respecting it, — drawing compari- 
sons between the two heroines, and criticising the 
narrative and style with his usual confident and 
decided tone, and in a way which showed that 
his imagination had been a good deal excited by 

* See North American Reyiew, roL ir. p. 310 — New Series. 



[ na ] 

the perusal. From this period till his death he 
was a considerable part of the time in a state of 
delirium. But in his lucid intervals, his mind re- 
verted to his favourite studies and pursuits, on 
which, whenever the temporary suspension of his 
bodily sufferings enabled him, he conversed with 
great freedom and animation. He seems, how- 
ever, to have anticipated that his illness must have 
a fatal termination, and to have awaited the event 
with patient fortitude. After a course of the most 
acute suffering, he breathed his last on the night 
of the 25th of February. 

The striking impression produced by the cir- 
cumstances of his death, cannot be better de- 
scribed than in the following extract from a letter 
which has been attributed to an eminent scholar, 
very capable of estimating the intellectual endow^- 
ments of Mr. Pinkney. 

" Washington, Marc/i 1st, 1822. 

. " The death of Mr. Pinkney, is the remarkable and engrossing 
circumstance of the present week, in this metropolis. Besides 
the reflections connected with the sudden privation of abilities so 
splendid, and knowledge so profound, as those by which the de- 
ceased was distinguished in his profession, other startling thoughts 
must have risen in the minds of that portion of the spectators 
who were capable of a serious mood, and who had seen him such 
as he was only ten or twelve days before — full of confidence, io 
his vigour and his fortunes, exulting in the supremacy of his pow- 
ers and reputation, and earnest to maintain it, by every mode of 
strenuous exertion. He had reached the age at which, in this 
country, dissolution is not deemed altogether premature, and the 
feelings by which the lawye^'and orator is impelled to extreme 
effort for invariable triumph in his career, usually abate ; when 



[ 173 ] 

he becomes, in some degree, visibly fatigwed with the race, and 
comparatively unambitious of its honours. But every thing about 
this brilliant personage, inspired the idea of the strongest vitality; 
of ripe, but enduring taculties of mind ; of unabated ardour and 
hope in the pursuit of fame, and the keenest fruition of the suc- 
cesses of life. Hence, his sudden exit was calculated to produce 
the liveliest impression of the fragility of human reliance and the 
vanity of terrestrial plans. Ashe had attained so much of mental 
power and various reputation, and the idea of a term to the en- 
joyment of what he had won in resources and dignities, did not 
intrude itself upon any observer, the lesson was more striking 
and forcible, than if the case had been that of a more youthful 
man, struggling with every promise of success for the same pos- 
sessions. 

" It is believed that the last illness of Mr. P. was occajgioned by 
an excessive effort in the preparation and delivery of an argument, 
within the few days immediately preceding the attack. It is said 
that he consumed all the night of Thursday week in framing his 
brief. When he spoke in court on Friday, he evidently labour- 
ed under a severe cold, and exerted himself beyond his strength 
— he was obliged several times to ask the indulgence of the 
Bench, while he sat down to rest for a few minutes, and to reco- 
ver his breath. Some of the Bar remarked to him that he would 
do wrong to proceed, seeing that he was indisposed and enfee- 
bled. But his zeal was not to be repressed -on this occasion, as it 
had not been on any similar one. 

" I have heard a distinguished lawyer, who had practised long 
in the same courts with him, remark of him, that he did not be- 
lieve that he ever undertook a cause, however insignificant it 
might be, without entering into it, as it were, with his whole soul, 
and managing it as if his whole professional reputation were at 
stake upon the issue. It was his pride and passion never to ap- 
pear in court, but after having entirely mastered the business 
which he was to transact. Sleep, exercise, the pleasures of so- 
ciety, he was always ready to renounce, rather than hazard the 
loss of an inch of the ground which he had gained, or seem at 
any moment unequal to his reputation. Does not the nature of 
his end remind you of Cicero's relation of that of Lucius Cras- 
sus, an orator whom he resembled in the intensity of his ard«ur 

23 



[ 174 ] 

to excel, and the extent of his influence over the minds of hiS 
hearers ? 

" Post ejus interituni veniebamus in curiam, ut vestigium illud 
ipsuni in quo ille postremum institisset, contueremur. Namque, 
turn hitus ei dicenti condoluisse, sudoremque multum eonsecutum 
esse audiebanius : ex quo cum cohorruisset, cum febri dotnura re- 
diit : diecjue septimo est consumptus. <) fallacem homhium spem, 
fnigilemque fortunam et inanes nostras contentiones ! quae in me- 
dio spatio saepe fran-juntur et corruunt, et ante in ipso eursu ob- 
ruuntur, quam portum conspicere potuerunt." 

At the opening of the Supreme Court on the 
morning after Mr. Pinkney's death, Mr. Harper 
addressed the court, and requested an adjourn- 
ment to the next day, in order to enable the bar 
to express its regret at the loss the profession 
and the public had sustained. He stated that the 
tribute which was due to the memory of their 
departed brother could no where be more pro- 
perly paid than in that place, where the pre-emi- 
nent talents and acquirements by which he 
adorned the profession had been so often dis- 
played, and wliere he had taken so large a part 
in fixing those great legal and constitutional land- 
marks by which that court had conferred the most 
solid and extensive benefits upon the nation. Mr. 
Chief Justice Marshall spoke with great feeling 
in reply, and observed that the judges partici- 
pated sincerely in the sentiments expressed at 
the bar, and lamented the death of Mr. Pinkney 
as a loss to the profession, and to the country at 
large ; and that they most readily assented to the 
motion which had been made. After the ad- 



[ 175 ] 

journment of the Court, the members of the bar 
assembled in tlie Court-room ; and Mr. day 
having been called to the chair, it was, on motion 
of vlr. Harper, seconded by Mr. Webster, unani- 
mously resolved, that the bar, as a mark of their 
respect for the memory of their deceased brother, 
and of their deep sense of the loss which the 
public and the profession had sustained in his 
death, would attend his funeral in a body, and 
wear crape on the left arm during the term. The 
usual resolutions on similar occasions were also 
passed by both houses of Congress, and his fune- 
ral was attended by the members, by the heads 
of the executive departments, the foreign minis- 
ters, the judges and bar of the Supreme C'ourt, 
and a numerous concourse of citizens, with all 
those matks of reverential sorrow and respect 
which were due to the character and eminent 
station of the deceased. 

The following extract from a sermon preached 
in the House of Representatives on the vSunrlay 
following the death of Mr. Pinkney, by the Rev. 
Mr. Sparks, one of the chaplains of Congress, 
will further illustrate the strong impression pro- 
duced on the public mind by that event. 

" But there is a greater moralist still ; and that is, Death. 
Here is a teacher who speaks in a voice which none can mis- 
take ; who comes with a power which none can resist. Since 
we last assembled in this place, as the liumble and united wor- 
shippers of God, this stern messenger, this mysterious agent of 
Omnipotence, has come among our numbers, and laid his wither- 



[ 176 ] 

ing hand on onp, whom we have been taught to honour and res- 
pect ; whose lame was a nation's boast, whose genius was a bril- 
liant spark from the ethereal fire, whose attainments were equalled 
only by the grasp of his intollect, the profoundness of his judg- 
ment, the exuberance of his fancy, the magic of his eloquence. 

" It is not my present purpose to ask your attention to any 
picture drawn in the studied phrase of eulogy. I aim not to 
describe thf* commanding powers and the eminent qualities which 
conducted the deceased to the superiority he held, and whicli 
were at once the admiration and the pride of his countrymen. I 
shall not attempt to analyze his capacious mind, nor to set forth 
the richness and variety of its treasures. The trophies of his 
genius are a sufficient testimony of these, and constitute a monu- 
ment to his memory, which will stand firm and conspicuous 
amidst the faded recollections of future ages. The present is 
not the time to count the sources or the memorials of his great- 
ness. He is gone. The noblest of heaven's gifts could not 
shield even him from the arrows of the destroyer ; and this be- 
hest of the Most High is a warning summons to us all. When 
death comes into our doors, we ought to feel that he is near. 
When his irreversible sentence falls on the great and the re- 
nowned, when he severs the strongest bonds which can bind mor- 
tals to earth, we ought to feel that our own hold on life is slight, 
that the thread of existence is slender, that we walk amidst perils, 
where the next wave in t!ie agitated sea of life may baffle all our 
struggles, and carry us into the dark bosom of the deep." 



Having already anticipated most of the parti- 
culars which must be combined in order to form 
a just estimate of the eminent individual of whom 
I have endeavoured to collect a few scattered 
traits, I will not detain the reader by attempting 
to blend them together in a studied portrait. In 
tracing the principal outlines of his public charac- 



[ 177 ] 

ter, his professional talents and attainments must 
necessarily occupy the most prominent place. 
To extraordinary natural endowments, Mr. Pink- 
ney added deep and various knowledge in his 
profession. A long course of study and prac- 
tice had familiarized his mind with the science of 
jurisprudence. His intellectual powers were most 
conspicuous in the investigations connected with 
that science. He had felt himself originally at- 
tracted to it by invincible inclination ; it was his 
principal pursuit in life ; and he never entirely lost 
sight of it in his occasional deviations into other 
pursuits and employments. The lures of po- 
litical ambition and the blandishments of polish- 
ed society — or perhaps a vague desire of univer- 
sal accomplishment and general applause, might 
sometimes tempt him to stray for a season from 
the path which the original bent of his genius had 
assigned him. But he always returned with fresh 
ardour and new delight to his appropriate voca- 
tion. He was devoted to the law with a true en* 
thusiasm ; and his other studies and pursuits, so 
far as they had a serious object, were valued 
chiefly as they might minister to tiiis idol of his 
affections. 

It was in his profession that he found himself at 
home ; in this consisted his pride and his plea- 
sure : for as he said, " the bar is not the place to 
" acquire or preserve a false or fraudulent repu- 
" tation for talents,"— and on that theatre he felt 
conscious of possessing those powers which would 
command success. 



[ 178 ] 
Even when abroad he never entirely neglected 
his legal studies. But at home, and when ac- 
tively engaged in the practice of his profession, 
he toiled with almost unparalleled industry. All 
other pursuits, — the pleasures of society, and even 
the repose which nature demands, were sacri- 
ficed to this engrossing object. His character, 
in this respect, affords a bright example for the 
imitation of the younger members of the profes- 
sion. This entire devotion to his professional 
pursuits was continued with unremitting perseve- 
rance to the end of his career. If the celebrated 
Denys Talon could say of the still more cele- 
brated D'Aguesseau, on hearing his first speech 
at the bar, — " that he icovlfl willingly end as that 
" young man commenced," — *every youthful as- 
pirant to forensic fame among us might wish to 
begin his professional exertions with the same 
love of labour, and the same ardent desire of 
distinction which marked the efforts of William 
Pinkney throughout his life. This intense appli- 
cation and untiring ambition continued to ani- 
mate his labours to the last moments of his exis- 



* M. D'Aguesseau avait fait le prf^mier essai de ses talens dans 
le charge d'.\vocat ou chatelet, ou il entra a I'age de vingt-un 
ans : et quoiqu'il ne I'eut exerc^e que quelques mois, son pare ne 
douta pas qu'il ne fut pas capable de remplir une troisieme charge 
d'Avocat G^D^ral au Parliament, qui venait d'etre cr^^e. II y 
parut d'abord avec tant d'eclat, que le celebre Denis Talon, 
alors President a Mortier, dit quHlvoudrait jinir comme cejeune 
homme commengait. Abrege de la Vie de M. le Chancillier 
d'Aguesseau. 



[ 179] 

tence ; and as he held up a high standard of ex- 
cellence in this noble career, he pursued it with 
unabated diligence and zeal, and still continued 
to exert all his faculties as if his entire reputa- 
tion was staked on each particular display. He 
guarded with anxious and jealous solicitude, the 
fame he had thus acquired. The editor well re- 
members in the last, and one of his most able plead- 
ings in the Supreme Court, remonstrating with him 
upon the necessity of his refraining from such la- 
borious exertions in the actual state of his health, 
and with what vehemence he replied — that he 

DID NOT DESIRE TO LIVE A MOMENT AFTER THE 
STANDING HE HAD ACQUIRED AT THE BAR WAS LOST, 
OR EVEN BROUGHT INTO DOUBT OR QUESTION. 

What might not be expected from professional 
emulation directed by such an ardent spirit, and 
such singleness of purpose even if sustained by 
far inferior abilities ! But no abilities, however 
splendid, can command success at the bar with- 
out intense labour and persevering application. 
It was this which secured to Mr. Pinkney the 
most extensive and lucrative practice e^'cr acquired 
by any American lawyer, and which raised him to 
such an enviable height of professional eminence. 
For many years he was the acknowledged leader 
of the bar in his native State ; and during the last 
ten years of his life, the principal period of his 
attendance in the Supreme Court of the nation, 
he enjoyed the reputation of having been rarely 
equalled and perhaps never excelled in the pow- 
er of reasoning upon legal subjects. This was 



[ ISO ] 

the faculty \vln{;li most remarkably distinguish- 
ed him. His mind was acute and subtle, and at 
the same time comprehensive in its grasp, — rapid 
and clear in its conceptions, and singularly felicit- 
ous in the exposition of the truths it was employed 
in investigating. He had the command of the great- 
est variety of the most beautiful and appropriate 
diction, and the faculty of adorning the dryest and 
most unpromising subjects. His style does not ap- 
pear to have been originally modelled after any par- 
ticular standard, or imitated from the example of 
any particular writer or speaker. It was formed 
from his peculiar manner of investigating and 
illustrating the subjects with which he had to 
deal, and was impressed with the stamp of his 
vigorous and comprehensive intellect. When it 
had received all the improvement which his ma- 
turer studies and experience in the practice of 
extemporaneous and written composition enabled 
him to give it, his diction more nearly approached 
to the model of that pure, copious, and classical 
style which graced the judicial eloquence of Sir 
William Scott, than to any other known stand- 
ard. But it had somewhat more of amplitude, 
and fulness, and variety of illustration, and of 
that vehement energy which is looked for in the 
pleadings of an advocate, but which would be 
unbecoming the judgment-seat. It also bor- 
rowed occasionally the copiousness, force, and 
idiomatic grace, and the boldness and richness of 
metaphor, which distinguish the old writers of 
English prose. But in all its essential qualities. 



[ 181 ] 
Mr. Pinkney's style was completely formed long 
before he had the advantage of studying any of 
these models of eloquence. The fragments of 
his works which are collected in this volume will 
enable the reader to form some judgment both of 
its characteristic excellencies and defects. But 
after all, the great fame of his eloquence must 
rest mainly in tradition, as no perfect memorials 
of his most interesting speeches at the Bar or in 
the Senate have been preserved ; besides that so 
much of the reputation of an orator depends upon 
those glowing thoughts and expressions which 
are struck out in the excitement and warmth of 
debate, and which the speaker himself is after- 
wards unable to recover. Most of the poetry of 
eloquence is of this evanescent character. The 
beautiful imagery which is produced in this man- 
ner, from the excitement of a rich and powerful 
mind, withers and perishes as soon as it springs 
into existence ; and the attempt to replace it by 
rhetorical ornament, subsequently priepared in 
the cold abstraction of the closet, is seldom suc- 
cessful. Hence some portions of Mr. Pinkney's 
speeches, which were begun to be written out by 
himself with the intention of publishing them, 
will be found, perhaps, to be somewliat too much 
elaborated, and to bear the marks of studied or- 
nament and excessive polish : but the editor is 
enabled to assert, from his own recollection, that 
whilst they have certainly lost in freshness and 
vigour by this process, in no instance have these 
more striking passages been improved in spien- 

24 



[ 182 ] 

dour of diction, and variety and richness of orna- 
ment/ Indeed^ he often poured forth too great a 
profusion of rhetorical imagery in extempora- 
neous composition. His style was frequently too 
highly wrought and embellished, and liis elocu- 
tion too vehement and declamatory for the or- 
dinary purposes of forensic discussion. But 
whoever has listened to him even upon a dry and 
complicated question of mere technical laWy 
where there seemed to be nothing on which the 
mind delighted to fasten, must recollect what a 
charm he diffused over the most arid and intri- 
cate discussions by the clearness and purity of 
his language, and the calm flow of his graceful 
elocution. His favourite mode of reasoninar was 
from the analogies of the law ; and whilst he 
delighted his auditory by his powers of amplifi- 
cation and illustration, he instructed them by 
tracing up the technical rules and positive insti- 
tutions of jurisprudence to their original principles 
and historical source. He followed 'Jie precept 
given (I think) by Pliny, and sowed his argu- 
ments broad-cast, amplifying them by every va- 
riety of illustration of which the subject admitted, 
and deducing from them a connected series of 
propositions and corollaries, gaining in beautiful 
gradations on the mind, and linked together by 
an adamantine chain of reasoning. 

Of the extent and solidity of his legal attain- 
ments, it would be difficult to speak in adequate 
terms, without the appearance of exaggeration. 
He was profoundly versed in the ancient learning 



[ 183 ] 

of the common law ; its technical peculiarities 
and feudal origin. Its subtle distinctions and arti- 
ficial logic were familiar to his early studies, and 
enabled him to expound with admirable forc€ and 
perspicuity the rules of real property. He was 
famihar with every branch of commercial law; 
and superadded, at a later period of his life, to his 
other legal attainments, an extensive acquaintance 
with the principles of international law, and the 
practice of the Prize Courts. In his legal studies 
he preferred the original text writers and report- 
ers, (e fontibus haiiriri,) to all those abridg- 
ments, digests, and elementary treatises, which 
lend so many convenient helps and facilities to 
the modern lawyer, but which he considered as 
adapted to form sciolists, and to encourage indo- 
lence and superficial habits of investigation. His 
favourite law book was the Coke Littleton, which 
he had read many times. Its principal texts he 
had treasured up in his memory, and his argu- 
ments at the bar abounded with perpetual recur- 
rences to the principles and analogies drawn from 
this rich mine of common law learning. 

Different estimates have been made of the ex- 
tent and variety of his merely literary accomplish- 
ments. He was not what is commonly called a 
learned man ; but he excelled in those branches 
of human knowledge which he had cultivated as 
auxiliary to his principal pursuit. Among his 
other accomplishments, (as has been before no- 
ticed,) he was a thorough master of the English 
language, — its grammar and idiom, — its terms and 



[ 184 ] 

significations, — its prosody, and in short, its whole 
structure and vocabulary. It has also been 
betbre intimated that speaking with reference to 
any high literary standard, his early education 
was defective. He had doubtless acquired in 
early life some knowledge of classical literature, 
but not sufficient to satisfy his own ideas of what 
was necessary to support the character of an ac- 
complished jrcholar. He used to relate to his 
young friends an anecdote, which explains one of 
the motives that induced him, at a mature age, 
and after he had risen to eminence, to review and 
extend his classical studies ; and at the same time 
illustrates one of the most remarkable traits of 
his C^iaracter — that resolution and firmness of 
purpose with which he devoted himself to the 
acquisition of any brandi of knowledge he deem- 
ed it desirable to possess. During his residence 
in England, some question of classical literature 
was discussed at table in a social party where he 
was present, and the guests, in turn, gave their 
opinions upon it : Mr. Pinkney being silent for 
some time, an appeal was at length made to him 
for his opinion, when he had the mortification of 
being compelled to acknowledge that he was un- 
acquainted with the subject. In consequence of 
this incident he was induced to resume his clas- 
sical studies, and actually put himself under the 
care of a master for the purpose of reviewing and 
extending his acquaintance with ancient litera- 
ture. 



' [ 185 ] 

But the acquisition of such knowledge may be 
recommended, and no (]oul>t was sought by Mr. 
Pinkney for a higher purpose than merely com- 
pleting the circle of liberal accomplishments. He 
never afterwards neglected to cultivate an attain- 
ment which he found so useful in enlarorinff his 
knowledge of his own language, improving ids 
taste, and strengthening and embellishing his fo- 
rensic style. Attempts have recently been made 
to depreciate the utility of classical learning ; and 
certainly the expediency of devoting the greater 
part of the time spent in education to the acqui- 
sition of the languages of Greece and Rome may 
well be questioned. But " there is a certain pe- 
" riod of life, when the mind like tlie body is not 
" yet firm enough for laborious and close opera- 
" tions. If applied to such, it fails an early vic- 
" tim to premature exertion : exhibiting indeed at 
"first, in those young and tender subjects, the 
*' flattering appearance of their )eing men while 
" they yet are children, but ending in reducing 
" them to be children when the/ should be men. 
" The memory is then most susceptible and tena- 
"cious of impressions ; and the learning of lan- 
" guages being chiefly a work of memory, it seems 
" precisely fitted to the powers of this period, 
" which is long enough too for acquiring the most 
" useful modern as well as ancient languages."* 
And, we may add, that the bright examples of 



Jefferson's Notes, Query XIV. 



[ 186 ] 
ancient virtue, and the perfect models of ancient 
taste, are best studied in the originals. That 
generous love of fame, of country, and of liberty, 
which was the animating soul of the Grecian and 
Roman republics, cannot be too early imbibed by 
the youth of every free state ; and whilst they are 
taught duly to estimate the more wise and perfect 
organization of modern societies, they should be 
warmed and cheered with those noble sentiments 
which illuminate the pages of the eloquent writers 
of antiquity, and which are the best fruits, and at 
the same time the surest preservatives of liberal 
institutions. 

During the whole course of his active and busy 
life, iVJr. Pinkney pursued his professional studies, 
and those which related to the English language 
and literature, with the strictes;t method and the 
most resolute oerseverance. But, in other re- 
spects he seem?<to have read in the most desul- 
tory manner possible ; in such a way, perhaps, as 
any man would \)e likely to pursue, who, with a 
vigorous intelleci^ and a disposition to industry, 
had no very precibe object before him but to gra- 
tify his curiosity alid to keep pace with the current 
literature of the day. His tenacious memory en- 
abled him to retain the stores of miscellaneous 
knowledge he had thus acquired, and his mind 
was enriched with literary and historical anecdote, 
which constituted the principal interest of his 
conversation, the charm of which was heightened 
by the facility and habitual elegance of his collo- 
quial style. 



[ 187 ] 

Whether he was endowed by nature with those 
large and comprehensive views, and that extensive 
knowledge of mankind which constitute the quali- 
fications of a great statesman, and which would 
have fitted him to take a leading part in the po- 
litical affairs of his country, and to guide its pub- 
lic councils in those moments of difficulty when 
" a new and troubled scene is opened, and the 
" file affords no precedent," — is a question which 
we have no ade(juate means of determining. His 
diplomatic correspondence will show indeed that 
he was perfectly competent to maintain his own 
reputation for general talent, and to acquit him- 
self in a manner creditable to his country, when 
brought in contact with the ablest and most expe- 
rienced statesmen of Europe. But, as has been 
before observed, his profession was the engross- 
ing pursuit of his life ; and beyond that, his talents 
shone most conspicuously in those senatorial dis- 
cussions which fall within the province of the 
constitutional lawyer. In the various questions 
relating to the interpretation of the national 
constitution which have been recently discussed, 
in the Supreme Court, it may be said, it is hoped, 
without irreverence, that Mr. Pinkney's learning 
and powers of reasoning have very much contri- 
buted to enlighten and fix its judgments. In the 
discussion of that class of causes, especially, 
which, to use his own expressions, " presented 
" the proud spectacle of a peaceful judicial review 
^' of the conflicting sovereign claims of the go- 
" vernment of the Union and the particular totates 



[ 188 ] 

" by this more than Anipliictyonic council," — his 
argiiments were characterized by a fervour, ear- 
nestness, gravity, eloquence, and force of reason- 
ing, which convinced all who heard him that he 
delivered his own sentiments as a citizen, and 
was not merely solicitous to discharge his duty as 
an advocate. He exerted an intellectual vigour 
proportioned to the magnitude of the occasion. 
He saw in it " a pledge of the immortality of the 
" Union, — of a perpetuity of national strength 
" and glory, increasing and brightening with age, 
*' — of concord at home, and reputation abroad." 
As to tlie general nature and operation of our 
federative system, he thought with the illustrious 
authors of the letters of Piihlius, that like other 
similar forms of government recorded in history, 
its tendency was rather to anarchy among the 
members than tyranny in the head, and that a 
general government, at least as energetic as that 
intended to be established by the framers of the 
constitution, was indispensably necessary to secure 
the great objects of the Union. Believing these 
to be, generally speaking, in more peril from ex- 
cessive jealousy on the part of the respective 
members of the Confederacy, than from encroach- 
ments by the national government, he carried the 
weight of his support to that side of the vessel of 
state which he thought to be in danger of losing 
its equipoise. Absolute unanimity is not to be 
expected on questions of such intrinsic difficulty 
as those which spring up on that debatable ground 
which marks the boundaries between the State 



[ 189 ] 

and national sovereignties. Still less is it to be look- 
ed for in the discussion of such a controversy as that 
arising from the admission of the State of Mis- 
souri into the Union, where so many deep-seated 
prejudices and passions -mingled in the debate, 
and a contest for political power and claims of 
private interest were involved in the result. That 
mighty tempest, which at one time seemed to 
shake the Union to its centre, and in the lano-uafre 
of Mr. Pinkney, threatened to " push from its 
" moorings the sacred ark of the common safety, 
" and to drive this gallant vessel, freighted with 
" every thing dear to an American bosom, upon 
"the rocks, or lay it a sheer hulk upon the 
" ocean," — has now passed away. But the agi- 
tation of the billows has not yet subsided ; and a 
distant posterity will alone be capable of pro- 
nouncing an impartial judgment upon the merits 
of a question complicated of so many considera- 
tions of humanity, of policy, and of constitution- 
al power. But a spirit of liberality may even 
now tolerate an honest difference of opinion on 
such a subject ; and it should be the part of the 
wise and the good to pour oil over this angry sea 
— to endeavour to calm the passions which were 
excited by the discussion, rather than to revive 
the remembrance of so painful a controversy by 
seeking to arraign the motives of those who were 
engaged in it. Whatever difference of opinion 
may still exist as to the part which Mr. Pinkne}^ 
took in this question, or of the manner in which 
the controversy was conducted on his side, all 
25 



[ 199 ] 

will now, I should think, concur in the sentiment 
expressed by him nt the close of his speech in the 
Senate on that njemorable occasion. After al- 
luding to the ambitious motives which were im- 
puted to some who were engaged in the contro- 
versy, he added : "■ For myself I can truly say that 
1' I am wholly destitute of what is commonly call- 
" ed Ambition. It is said that Ambition is the 
" disease of noble minds. If it be so, mine must 
"be a vulgar one: For I have nothing to desire 
" in thiis world but professional fame, — health and 
" competence for those who are dear to me, a 
*'long list of friends among the virtuout* and the 
" good, and honour and prosperity for my coun- 
", try. But if I possessed any faculties by the ex- 
" ertion of which at a moment like the present I 
" could gain a place in the affectionate remem- 
*' brance of my countrymen, and connect my 
" humble name with the stability of the American 
" Union by tranquilizing the alarms which are 
" now believed to endanger it, I know of no re- 
" ward on this side the grave, save only that of an 
" approving conscience, which, put in compari- 
"son with it, I should think worthy of a sigh, if 
« lost, — of exultation, if obtained." 



PART SECOND. 




X ^ 



N« I. 

MR. PINKNEY's opinions DELIVERED AT THE BOARD 
OF COMMISSIONERS, ACTING UNDER THE 7tH AR- 
TICLE OF THE TREATY OF 1794, BETWEEN THE 
UNITED STATES AND GREAT BRITAIN. 

\ 

THE BETSEY, 

Furlong, Master. 

Dr. Nicholl. — " The board having maturely considered the 
Memorial and Exhibits, together with the letter of Mr. Gosling, 
and it being proposed and agreed that the board should now 
come to a decision on the following question : ' Whether on 
behalf of the claimant, a case has been made out which comes 
within the provisions of the treaty ?' Dr. Nicholl stated as his 
opinion, that the sentence of condemnation having been affirmed 
in this case, upon an appeal to the supreme tribunal, credit is to 
be given to it, inasmuch as, according to the general law of 
nations, it is presumed that justice has been administered in mat- 
ters of prize by the supreme tribunal of the capturing state. 

" That the treaty has not altered this general rule of the law 
of' nations, having engaged to afford relief only in cases (either 
existing at the time of signing or arising before the ratifications) 
in which, from circumstances belonging to them, adequate com- 
pensation could not then be obtained in the ordinary course of 
justice, or in other words, (but no words can be more explicit 
and clear than those of the treaty itself) cases to which circum- 
stances belonged that rendered the powers of the Supreme Court 
of this country, acting according to its ordinary rules, incompe- 
tent to afford complete compensation. 



[ 194 ] 

■ " That the appeal was heard after the signing of the treaty, 
and the claimant has not satisfactorily shown any circumstances, 
belonging to his case, on account of which adequate compensa- 
tion could not have been obtained in the ordinary course of ju- 
dicial proceedings; or on account of which the supreme tri- 
bunal could not fully consider, and justly decide upon the whole 
merits of the case. 

" Dr. Nicholl therefore thought that the claim ought to be dis- 
missed. (Signed; JOHN NICHOLL. 

January 30th, 1797- 

" Enlarged opinion hy 

Dr. Nicholl. " Several members of the board have re- 

corded their opinions, not only on the preliminary question 
which arose in this case, as to the construction of the treaty, but 
also on the merits of the claimant's demand of compensation. 
They have not only recorded the general grounds of their opin- 
ions, but have discussed at length several of the topics that were 
either contained in the printed cases and other proceedings, or 
mentioned at the board in the course of the inquiry. — Lest from 
this latter circumstance it should be inferred that those topics 
formed the principal grounds of my decision, I feel myself called 
upon to state in writing the reasons of my ultimate opinion on 
the merits of the case. 

" At the same time, T take the opportunity of declaring that it 
is not my present intention again to resort to this measure, not 
thinking that the duty I have undertaken calls for it. 

" Upon the construction of the treaty as to the extent of the 
powers given to the commissioners, it might be questioned how 
far the decision of the board was binding on the high contracting 
parties. The decision might be revised, and the reasons of each 
member might be required to appear. I therefore record mine. 
But upon the merits nf the claims and the amount of compensa- 
tion, the treaty has expressly declared the decision of the major- 
ity of the board to be final and conclusive. 

" It would be extremely inconvenient, if not altogether incom- 
patible with my professional engagements, to state my opinion 
in writing on the merits of each case. 



[ 195 ] 

" It is probable that those who shall chance to read the reasons 
which iiMV be hereafter recorded in other cases by nn^iibers of 
the board, and who shall find certain positions very ably contro- 
verted in those reasons, may infer that a difference of opinion in 
other members was wholly or principally founded on those posi- 
tions, notvvithstandnig in truth ihey misiht not materially, or even 
in any degree, weigh in their final judgment. I must submit in 
future cases lo be exposed to such erroneous inferences. 

" In what I am about to state, it is not my intention to combat 
any of the positions laid down in the opinions in writing deli- 
vered in by other members, however decided my dissent may be 
from several of them : much less shall I examine any loose ob- 
servations in the printed cases or proceedings, or which may 
have dropped at the board in the course of an unreserved dis- 
cussion of the merits of the claim. I shall content myself with 
staling briefly what was my own final impression of the case^ 
leaving undisturbed those reasons which have governed other 
gentlemen in their decision-. 

" It appears unnecessary again to state minutely the circum- 
stances of the case. They will be found in the proceedings, and 
in the opinions of other members. 

" The first and principal consideration is in respect to the 
compensation claimed on behalf of George Patterson, the pro- 
proprietor of the vessel, and of a moiety of the cargo. 

" George Patterson was a citizen of America. He went on 
board the Betsey to the French Island of Guadaloupe several 
months after the existence of open war between Great Britain 
and France, disposed of her cargo there, dispatched the vessel 
to America with the (present) return cargo, and with instruc- 
tions to bring back another cargo to Guadaloupe. 

" George Patterson remained behind at Guadaloupe, and was 
resident there at the time of the capture in question. 

" All persons who are within the enemy's territory, are, prima, 
facie, to be considered as enemies, and are liable to hostility. 

" But a person within the enemy's territory is excepted from - 
hostility, if it can be shown that he was a neutral, and was there 
for an occasional purpose, and not engaged in any transactions 
connected with the operations of war. A neutral must cautious- 



[ 196 ] 

ly abstain from interposing in the war — to prove this, no autho- 
rity is necessary to be referred to. He is not at liberty to do all 
acts with the same unguarded freedom as in time of peace. If a 
neutral has rights, he has also duties. 

" George Patterson's right to compensation depends then, in 
my opinion, on his having shown that notwithstanding he was at 
Guadaloupe at the time of the capture of his vessel and proper- 
ty, still he was there acting in a manner perfectly consistent with 
the strict duty of a neutral. The burthen of proof lies upon 
him — prima facie he was an enemy : he must exculpate himself. 

" He carried to Guadaloupe a cargo of provisions. This was 
not illegal. His cargo, though brought there for sale, was forci- 
bly purchased from him by the governing powers of the Island; 
a circumstance from which he would naturally infer, that provi- 
sions were at that time n( cessar^ to the military operations of the 
Island. 

"It was a matter of public notoriety that a British armament 
of considerable force was at that time acting in the West-Indies 
for the conquest of the French Islands. 

" Martinique, a neighbouring Island, was at that time invaded. 

" The attack of Guadaloupe was at that time expected. 

" George Patterson, though his outward cargo was disposed of, 
and a return cargo of great value purchased, thought proper to 
separate himself from his vessel, to dispatch her to America, and 
voluntarily to remain at this critical period at Guadaloupe — liable 
to be called upon to do military duty, and to act in common with 
the other inhabitants in defence of the Island. 

"He did not remain there to withdraw his property, or frotii 
apprehension of danger to it ; for he sent to America for ano- 
ther cargo ; another cargo of provisions, which, from what he had 
already experienced, he must well know were highly necessary to 
the defence of the place. His instructions were that the vessel 
should return with these provisions with all possible speed. 
Whether all this was done with the intention of aiding and ad- 
hering to the enemy, and of interposing in the war, or merely for 
mercantile profit, is not material to be proved. A neutral who 
supplies the enemy with contraband, probably, has profit only in 
view. 



E 197 ] 

" The Board is not called upon to lay down general rules, or 
to define abstract principles, but to decide on the merits of the 
claim, under all its accompanying circumstances. It may be ex- 
tremely difficult to define precisely what residence in a belligerent 
country, in its nature and duration, shall be permitted to a neutral 
— or what acts amount to an interposition in the war : and al- 
though I feel the present case to be by no means clear of doubt 
and difficulty, yet under all the circumstances taken together, I 
am of opinion that George Patterson, voluntarily staying at Gua- 
daloupe at the particular period in question, and acting in the 
manner before stated, was not excepted from hostility, and is not 
entitled to compensation for the loss of his property engaged in 
that transaction and taken during the time he so continued at 
Guadaloupe. 

" Mr. William Patterson was owner of the other moiety of the 
cargo. He remained in America, and was no otherwike engaged 
in the transactions of George Patterson or responsible for his 
acts than as being his partner in trade. 

" Having very maturely considered the case of this claimant, 
and with all that deference and respect which is justly due to 
the decision of a very exalted tribunal, but being bound (if that 
decision is not conclusive) to decide ultimately upon my own 
conscientious judgment, I cannot but concur with the majority 
of the Board in thinking that William Patterson is entitled to 
compensation. 

" The next consideration is, what are the losses and damages 
for which compensation is to be made ? 

" The claimants demand not only for those arising from the 
condemn ation, but for all those in any degree resulting from the 
original capture. 

" This demand depends upon the consideration whether or 
not there was probable cause of seizure, and of bringing in the 
vessel and cargo for legal adjudication. 

" And when the two regular tribunals of the belligerent state, 
(which by the general law of nations are alone competent to de- 
cide on captures;) and when two members out of five who com- 
pose this Board, all acting under the most solemn obligations, 
have concurred in holding that the most considerable part of the 
property is evea subject to confiscation, it seems to rae (without 

26 



[ 198 ] 

entering into other reasons) that at least there was probable cause 
for putting the matter into a course of judicial inquiry, and that 
the demand of compensation for all losses and damages resulting 
from the capture is wholly unfounded. 

" The last matter of any material importance to be consider- 
ed, is the demand made not only for the loss and damage actual- 
ly incurred, and out of pocket, but also for loss of die profit 
that might have been made if the cargo had arrived and been 
sold at its port of destination. 

" The claimants in making this demand appear to me to have 
forgotten, that if neutrals are to enjoy the benefits arising from 
a state of war, they must be content to bear part of its incon- 
veniencies ; or on the other hand, if they claim to be exonerated 
from all the risks and inconveniencies of war, they must agree 
to forego its advantages. They are not to say, give to my com- 
merce the security of the state of peace, but give me the profits 
of the state of war. The risk and the profits are the counter- 
poise to each other. 

" A claim is here made of a profit of near an hundred per 
cent. This is scarcely ever heard of in time of peace. If it ex- 
isted at all, it existed only in consequence of the war, and the 
risks that usually accompany it. 

" T«) reimburse the claimants the original cost of their proper- 
ty, and all the expenses they have artually incurred, together with 
interest on the whole amount, would, I think, be a just and ade- 
quati^ compensation. This, I believe, is the measure of compen- 
sation usually made by all belligerent nations, and accepted by 
all neutral nations, for losses, costs, and damages occasioned by 
illegal captures. 

" To add to the original cost of the property a reasonable 
mercantile profit, such as is usually made in time of peace, would, 
in my opinion, amount even to a very liberal compensation. 

" But the demand that is setup of the profits that might pos- 
sibly have been made, if the cargo had arrived and been sold at 
its destined port, when it is recollected that the trade itself was 
barely not illegal, it being opened by the enemy to the neutral, in 
a great measure, under the pressure of war — that the profits of 
this trade were highly inflamed by the war ; the French West- 
India colonists being under a necessity of selling their produce 



[ 199 ] 

at a very low price to neutrals, who conveyed it circuitously to 
Europe ; and the prices in Europe from the same causes being 
very high ; that the prices were further raised in America at the 
period in question, by the general order that had existed to stop 
all American vessels engaged in that trade — when it is further re- 
collected that the prices at Baltimore were probably increased by 
the capture of several vessels destined to that port ; and in some 
degree by the capture of this very vessel, (for it would be al- 
most monstrous to insist that in making compensation for these 
captures, the inflamed price occasioned by the very captures 
themselves, is to be paid,) added to this, the extreme difficulty of 
ascertaining the amount of these profits, under all the risks, with 
any degree of rational certainty. Under all these circumstances, 
the demand, I sny, of these war profits, at the same time that the 
British government is about to compensate the citizens of Ame- 
rica for all the actual losses resulting at this period from the state 
of war, and to indemnify them by a new and extraordinary 
mode of relief, from those costs and damages whicli other na- 
tions are content to seek only in the ordinary course of justice, 
appears to me highly unreasonable. It is a demand that, in my 
opinion, is not consistent with the true meaning of the treaty itself, 
which intended to substitute in this respect a new mode, and not 
a new measure of compensation. It is a demand not supported 
by that reciprocity — by that maxim of taking advantage and dis- 
advantage together, which is the very foundation and spirit of 
equity, justice, and the law of nations." 

Mr. Pinkney. — A leading feature of this case 
is, that the sentence of condemnation in the Vice- 
Admiralty of Bermuda, has, upon the appeal of 
the claimant been affirmed by the Lords Com- 
missioners for Appeals, the supreme judicature 
in the kingdom in matters of prize. 

In consequence, a question has occurred upon 
the showing of the agent of the crown, " Whe- 
^' ther this Board is bound and concluded by that 



[ 200 ] 

" affirmance, so as to be prevented (as between 
" the claimants and his Majesty's government) 
" from examinintr into and relieving against the 
" capture and condemnation, sanctioned by it as 
"between the clainifints ond the cfiptor, upon 
" the same evidence in substance submitted to the 
"consideration of their Lordships'!" 

The agent's objection is in tlie following words, 
" That the captor ha.s no riofht against the claim- 
" ants to found a condemnation but as a grantee 
" of the crown, and such as the crown would have 
" had in the same circumstances ; and that, there- 
" fore, this is a case between the same parties, 
'* and upon the same facts in which a judgment 
" has been given in a solemn decision by the Su- 
" preme Court of the law of nations in this king- 
" dom, which other authorities, proceeding by 
" the same law, are bound to respect and con- 
" firm ; — that the case has no circumstances be- 
" longing to it, by which the claimants were disa- 
" bled from receiving complete justice in the ordi- 
*' nary course of judicial proceedings, and, there- 
" fore, that it is not a case in which the parties 
" are entitled to relief under and by virtue of the 
" provisions of the treaty." 

Upon the fullest consideration of this objec- 
tion, 1 have stated it to be my opinion, " that the 
" affirmance of the condemnation by the Lords 
" does, in no respect, bind us as Commissioners 
" under the 7th article of the treaty ; and that it 
" is no further material to our inquiries, in the 
" execution of the trust confided to us, than as it 



['201 ] 

" goes to prove that compensation was unattaina- 
" ble by the claimants in the ordinary com-se of 
"justice." 

It has been explicitly understood that the opi- 
nion I have thus delivered is in precise conformi- 
ty with that of his Majesty's government ; but, as 
the objection to which it is opposed has been re- 
peated by the agent on every occasion that has 
since occurred, notwithstanding the avowed dis- 
approbation of its principles by those from whom 
his authority is derived, and as one of the Board 
has not only sustained the objection by his ulti- 
mate opinion, but recorded the reasons which 
have induced him to do so, in the nature of a pro- 
test against the decision of the majority, T feel it 
to be my duty to reduce to writing, and to file the 
reflections which have led me to the foregoing 
conclusion. 

There are some of the agent's premises which 
I shall not employ myself in contesting. He who 
alleges, for example, that the crown is the same 
party with the master or owner of a privateer, to 
whom it has granted a commission of reprisals, 
can expect no more than that his allegation should 
be merely denied. But even if the allegation 
were true, there is certainly more novelty than 
correctness in the argument that a judgment of 
his Majesty's own Court, composed of the members 
of his own Council, is the more especially entitled 
to a conclusive quality against neutral uarions and 
their citizens, who have been injured by it, be- 
cause his Majesty was himself a party to the suit. 



[ 202 ] 

I am very far from being disposed to insist that 
the judgments of the Lords of Appeal is the less 
to be respected on that account : but it is neither 
indecorous towards that high court, nor unrea- 
sonable in itself to say, that the extensive binding 
force, now for the first time attributed to their 
sentences, could not rest on a foundation so little 
calculated to support it. 

In order to ascertain whether the sentence of 
the Lords in this case (however unjust it may be) 
is conclusive upon this Board under the treaty, it 
is previously to be inquired whether the govern- 
ment of the United States, independent of the 
treaty, would, upon the application of the claim- 
ants for re(hess against the capture and condem- 
nation confirmed by it, by wav of reprisals or 
otherwise, be bound by the law of nations to es- 
teem it just, although upon its face, it was mani- 
festly the reverse. 

The necessity of this preliminary inquiry would 
seem to be obvious at first sight ; but it will, per- 
haps, be more apparent when 1 proceed to show 
the influence which its true result is entitled to 
have upon the construction of the treaty. 

" By the law of nations, universally and imme- 
moria'ly received, the legality of a seizure as prize 
is to be determined in the courts of the nation to 
which the captor belongs, judging according to 
that law, and to treaties (if any) subsisting be- 
tween the states of the captor and claimant." 

(Answer to Prussian Memorial.) 



[ 203 ] 

The nature and grounds of this exclusive prize 
jurisdiction in the nation of the captor, and the 
legal effects flowing from its exercise, are so clearly 
detailed by Rutherforth, in his Institutes of Natu- 
ral Law, that 1 will here quote that detail at large 
in place of giving my own. 

This right of the nation of the captor (says 
Rutherforth, 2d vol. p. 596) is founded upon ano- 
ther, i. e. the right of the nation to inspect into 
the conduct of the captors, both because they are 
members of the state, and because it is ansicera- 
hle to all other states ; for what they do in war 
is done either mider its general or under its spe- 
cial commission. " The captors, therefore, (p. 
" 597) are obliged, upon account of the jurisdic- 
*' tion which the state has over their persons, to 
" bring such ships or goods as they seize on the 
" main ocean into their ports : and they cannot 
" acquire property in them till the state has de- 
" termined whether they were lawfully taken or 
" not. This right which their own state has to 
" determine this matter is so far an exclusive one, 
" that no other state can claim to judge of their 
" behaviour till it has been thoroughly examined 
" into by their own : both because no other state 
" has jurisdiction over their persons, and likewise 
" because no other state is answerable for what 
" they do. But the state to which the captors 
" belong, whilst it is thus examining into the be- 
" haviour of its own members, and deciding whe- 
" ther the ships or goods which they have seized 
" upon are lawfully taken or not, is determining 



[ 204 ] 

'* a controversy between its own members and the 
" foreigners who claim the ships or the goods : 
" and this controversy did not arise within its own 
" territory, but on the main ocean. The right, 
" therefore, which it exercises is not civil juris- 
" diction ; and the civil law which is peculiar to 
" its own territory is not the law by which it ought 
" to proceed ; neither the place where the con- 
" troversy arose, nor the parties who are con- 
" cerned, are subject to that law. The only law 
" by which it can be determined is the law of na- 
" ture applied to the collective bodies of civil 
" societies ; that is, the law of nations, unless in- 
" deed there have been particular treaties made 
" between the two states to which the captors and 
" claimants belong, &c." 

" This right of the state to which the captors 
" belong, (p. 598) to judge exclusively, is not a 
" complete jurisdiction. The captors, who are its 
" members, are bound to submit to its sentence, 
" though this sentence should happen to be er- 
"roneous, because it has a complete jurisdiction 
" over their persons. But the other parties in 
" the controversy, as they are members of another 
" state, are only bound to submit to its sentence, 
^^ as far as this sentence is agreeable to the law 
" of nations or to particular treaties, because it 
" has no jurisdiction over them, in respect either 
" of their persons or of the things that are the sub- 
" ject of the controversy ; — if justice therefore is 
" not done them, they may apply to their own 
" state for a remedy which may consistently icith 



[ 205 ] 

" the law of nations^ give them a remedy, either 
^^hy solemn war, or hy reprisals. In order to 
" determine when their right to apply to their own 
" state begins, we must inquire when the exclu- 
" sive right of the other state to judge in this 
"controversy ends. As this exclusive right is 
" nothing else but the right of the state to which 
" the captors belong, to examine into the con- 
"duct of its own members, before it becomes an- 
" sicerable for what they hate done, such exclu- 
" sive right cannot end until their conduct has 
" been thoroughly examined. Natural equity will 
" not allow that the state should be answerable 
" for their acts, until those acts are examined 
" by all the ways which the state has appointed 
" for this purpose. Since, therefore, it is usual in 
''maritime countries to establish not only infe- 
" rior courts of marine, to judge what is and what 
" is not lawful prize ; but likewise superior courts 
" of review, to which the parties may appeal, 
" if they think themselves aggrieved by the infe- 
" rior courts ; the subjects of a neutral state carf 
"have no right to apply to their own state for a 
" remedy against the erroneous sentence of an in- 
" ferior, until they have appealed to the superior 
" court, or to the several superior courts, if there 
" are more courts of this sort than one, and until the 
" sentence has been confirmed in all of them. After 
" the sentence of the inferior courts has been thus 
" confirmed, (the very case of the Betsey, Fur- 
" long,) the foreign claimants may apply to their 
" own state for a remedy if they think themselves 

27 



[ 206 ] 

" asf^rieved : but the law of nations will not enti- 
" tie them to a remedy unless they have been ac- 
" tually aggrieved, and, even if upon their own 
" report they appear in the judgment of their 
" own state to have been actually aggrieved ; yet 
"this will not justify it in declaring war or in 
" making reprisals immediately. When the mat- 
" ter is carried thus far, the two states become the 
" parties in the controversy. And since the law 
" of nature, whether applied to individuals or ci- 
" vil societies, abhors the use of force, until force 
" becomes necessary, the supreme governors of 
" the neutral state, before they proceed to solemn 
" war or to reprisals, ought to apply to the su- 
*' preme governors of the other state, both to 
" satisfy themselves that they have been rightly 
" informed, and likewise to try whether the con- 
"troversy cannot be adjusted by more gentle 
" methods." 

From the foregoing quotations it may be col- 
lected, that the jurisdiction of the court of the 
capturing nation is complete upon the point of 
propcrtif — that its sentence forecloses all contro- 
versy between claimant and captors, and those 
daimincr under them — and that it terminates for 
ever all ordinary judicial inquiry upon the mat- 
ter of it. These are the unquestionable effects 
of a final admiralty sentence, and in these re- 
spects it is unimpeachable and conclusive. But 
the doctrine involved in Mr. Gosling's objection 
reaches infinitely further. Tt swells an incidental 
jurisdiction over things into a direct, complete, 



[207 ] 

and unqualified control over nations and their 
citizens. The author I have just quoted, proves 
incontestibly, by arguments drawn from the na- 
ture and foundation of prize cognizance, that this 
doctrine is absurd and inadmissible — that nei- 
ther the United States, nor the claimants its citi- ^ 
zens, are bound to take for just the sentence of 
the Lords, if in fact it is not so ; and that the af- 
firmance of an illegal condemnation, so fiir from 
legitimating the wrong done by the original 
seizure, and precluding the neutral from seeking 
reparation for it against the British nation, is pe- 
culiarly that very act which consummates the 
wrong, and indisputably perfects the neutral's 
right of demanding that reparation througli^the 
medium of his own government. 

If I had no opinion to combat but that of the 
agent, on a point so extremely plain, I would con- 
tent myself on this part of the subject with what 
has been said. Hut the agent's opinion has de- 
rived countenance from a source too respectable 
to be slighted, and 1 will, therefore, bestow some 
further consideration on it. 

It results, from the nquality and independence of 
nations, that the jurisdiction entrusted to one nation 
for wise and equitable purposes, by that law which 
is common to all, shall not be allowed to encroach 
upon the rights of other states, or (which is the 
same thing) those of their citizens or subjects. 

The municipal law of every well regulated com- 
munity, in which the ends of social union, and 
the moral duties arising out of it, are understood, 



[ 208 3 

will furnish us with the axiom — " sic ut6re tuo ut 
" alienum non Isedas." This axiom, although in- 
corporated into the local code of many countries, 
belonf^s to and forms a part of the law of nature ; 
and if such is the rule which natural as well as 
% civil law prescribes to individuals in tlieir social 
^relations, it is not to be conceived that the law of 
nations, which considers states as so many indi- 
viduals upon a footing of relative equality, com- 
municates jurisdiction to any, without annexing 
a condition to the grant, thai in its exercise it shall 
not trend) upon the rights of any other member 
of the great society of nations. 

If the largest possible scope be given to the 
jurisdiction in question, still it is a jurisdiction 
which must be rightjuUy used by the state that 
claitns it. The law of nations canimt be supposed 
to give to one state the right of invading, under 
judicial forms, the property of another. The 
power it does give is tliat of examining and justly 
deciding (directly upon the conduct of its own 
members) and (incidentally) upon the rights of 
neutrals, in matters of prize ; but it would be a 
libel upon the law of nations to say, that a decision 
contrary to jvMice, against those who are equal to, 
and independent of, the court pronouncing it, is 
warranted by any jurisdiction known to that law. 
Such a dccif^ion, it may confidently be urged, has 
and can have nothing but physical power to sus- 
tain it. However it may be pronounced under 
colour of an existing authority, it can never be 
by virtue of it. 



[ 209 ] 

The law of nations, which is a system of mo- 
ral equity applied to civil societies, respects, and 
is calculated to shield from infringement, the rigiits 
of all, without preference to any. If it recog- 
nizes and protects the right of a belligerent to de- 
termine the question of prize or no prize, accord- 
ing to the rules it has ordained, it also acknow- 
ledges and protects the right of a neutral to his 
merchandise and vessels not confiscable by those 
rules. And if the former right is abused or ex- 
ceeded (tVom error or design) to ti'e manifest 
violation of the latter, that law which has both 
equally under its protection, will vindicate the 
right so violated, by entitling the party injured to 
redress. 

The most strenuous advocate for the omnipo- 
tence of prize jurisdiction, would hardly venture 
to advance so bold an absurdity as that the law of 
nations confers an unlimited discretion upon those 
who act under it. On the contrary, it is univer- 
sally agreed (vid. Lee on Captures, 238 — Ansr. 
to Prussian Memorial, 2 — Ruth, ub supr. &c. & c.) 
that the use of the jurisdiction is regulated and 
bounded by the law which grants it. Who does not 
see, then, that if it is used contrary to the regu- 
lations, or stretched beyond those limits, such use 
is wrongful in respect of the neutral nation, and 
its citizens affected by its operation 1 And if it 
be wrongful, how can it be maintained that the 
neutral nation and its injured citizens are remedi- 
less ? But if admiralty decrees are to carry along 
with them incontrovertible evidence of their own 



[ 210 ] 

legality ; if they are to be sheltered by a veil of 
imaginary sanctity, from all scrutiny or examina- 
tion into their merits — if they are to pass upon 
the world for just, although palpably oppressive, 
it is in vain that the law of nations has circum- 
scribed prize cognizance, and laid down rules of 
conduct for those to whom it is committed ! No 
sophistry can establish this position, that although 
a flagrant wrong has been done by one nation to 
another, under the pretext of the law of nations, 
that wry law prohibits retribution ; or, that iui in- 
jurious act becomes to all effectual purposes a 
lawful one, for no other reason but because it has 
been done. 

The only ground upon which admiralty juris- 
diction ever has been or can be rested, shows that 
a sentence under it, is not to be conclusively taken 
to be legal. A belligerent has this jurisdiction 
for its own safety — because it is answerable to 
other nations for the conduct of its emptors. 

It is allowed exclusive cognizance of the cap- 
ture, for the purpose of ascertaining whether it 
will confirm it, and thus complete its own respon- 
sibility, or give to the claimant adequate redress 
against the captor, and thus exonerate itself. Until 
it has made this ascertainment (provided it is not 
delayed) the neutral has not in general* any 



* I say in general, because there may be cases where the nation 
may be answerable ininiodiMtely, or at least before the cause has 
gone through every possible stage, — as where the capture is under 
the special orders of the state, &c. 



[ 211 ] 

cause of complaint against the belligcrmt nation. 
The national liability is suspended while the sub- 
ject is regularly suh judice between captor and 
claimant, because it is yet undecided whether 
the state will adopt the injury, and convert it from 
a private to a public one. 

The judgment of its Prize Court, in the last re- 
sort, in general, perfects or destroys that liability. 
If it grants adequate redress, there is nothing to 
be answerable for ; but if, instead of doing so, 
it completes the original injury by rendering it 
irreparable by any ordinary means, the national 
responsibility is obviously perfect. The injury 
becomes its own ; and the neutral, from being 
compelled to ask redress against the captor, is 
now authorised to ask it against his nation, which 
has sheltered him from his just demands.* 

Grotius, b. 3.ch. 2, sec. 5, (treating of reprisals) 
states expressly that a judicial sentence plainly 
against right to the prejudice of a foreigner, en- 
titles his nation to obtain reparation by reprisals ; 
^^for the authoritij of the judge is not of the same 
^^ force against strangers as subjects. Here is 
" the difterence : subjects are bound up by the 
" sentence of the Judge, though it be unjust, so as 
" they cannot oppose the execution of it lawfully, 
" nor by force recover their own right, for the 
" efficacy of that power under which they live : — 



* Vide Grotius, Lib. 2, cli. 21. sect, 1, 2, and 8 ; and 2 Ruth. 
Inst. Nat. Law, p. 515. 



[ 212 ] 

" But strangers have coercive power" (i. e. re- 
prisals of which the author is treating) " though 
" it be not hiwful to use it, whilst they may rc- 
" cover their right in a judicial way." 

So that Grotius agrees with Rutherforth that 
the nation of the captor is so far from being dis- 
charged of its responsibihty for a wrong com- 
mitted by him, by means of a definitive decree of 
its prize tribunal denying justice to the neutral 
claimant, that tliis very circumstance consummates 
that responsibility, and he opposes himself une- 
quivocally to the novel doctrine that the Courts 
of Marine of this or any other country can bind 
strangers to receive their sentences as indisputa- 
bly legal, when they are in truth otherwise. 

The same principles will be found in Lee on 
Captures, (treating of reprisals) and in Vattel on 
the same subject. It is doubtless true that the 
law of nations prescribes to states reciprocal re- 
spect for the maritime jurisdictions of each other, 
and for the sentences flowing from them. It is 
necessary to their repose that they should not 
encourage or act upon captious complaints against 
such sentences. But there is no law, nor can a 
shadow of authority be produced, to prove that 
there is, which prescribes to states implicit sub- 
mission to them, when well-grounded complaints 
are made against them. On the contrary, it is, 
under such circumstances, the duty of the state 
whose citizens are oppressed to seek reparation 
for the damages produced by them. It is self- 
evident that a belligerent has not, by the law of 



[ 213 ] 

nations, the power of adjudging away the pro- 
perty of neutrals not liable to condemnation. 
But a belligerent has this colossal power in its 
utmost size, if the decrees of its Prize Courts are 
in every view to be irrefragable testimony of their 
justice. How is the want of right to pass a de- 
cree by which a neutral has been injured to be 
established, if that very decree is admitted to 
prove undeniably that the right existed ? How 
is oppression to be shown or redressed, if that 
which constitutes its essence, and gives to it, its 
character and quality, is precisely that which le- 
gitimates and shields it from investigation ? A 
final, unjust judgment against a neutral, says the 
law of nations, is a good ground for reprisals, 
because no other mode of compensation is left. 
But Mr. Gosling informs us that the ground of 
reprisals is annihilated in the moment of its birth ; 
for, that as soon as the unjust judgment is passed, 
the law of nations presumes that it is a lawful 
judgment, and forbids all the world to doubt or 
question it ! 

It is obvious that between independent states, 
none of which can have authority over the others, 
one cannot assume to itself an exclusive power 
of interpreting the law of nations to the prejudice 
of the rest. So long as th6 interpretation put 
upon that law is a proper one, and works no in- 
jury to any other state or its citizens, all are 
under a moral obligation to acquiesce in it, be- 
cause all are bound by the rule itself; but surely 
if the rule is misconceived, or if rules unknown 

28 



[ 214 ] 

to the law of nations are attempted to be intro- 
duced by one nation to the detriment of another, 
the independence of nations is a term without a 
meaning, if this is to be submitted to. 

To administer the laic of nations is the. ac- 
knowledged province of a Prize Court ; and, while 
acting within this province, (which can only ap- 
pear from its decrees,) none are authorized to 
complain of it ; but, when it occupies itself in ad- 
ministering some other law by which the society 
of nations is not bound, it is out of its province, 
and has no claim to the acquiescence of those 
whom its sentences may prejudice. If it be true 
that the definitive decree of a Prize ( 'ourt, though 
contrary to the law of nations, binds the nation 
of the claimant to admit the propriety of its prin- 
ciples, as well as forecloses judicial controversy, 
the court so decreeing has legislated pro hac vice, 
not adjudged. For the decree introduces a new 
law for the case, and does not execute that which 
already exists. What more can be said of a law 
than that it has a title to irnplicit submission, and 
creates the rules which it enforces \ That a Prize 
Court, whether inferior or superior, of any one 
nation, has this extravagant authority of legis- 
lating, in the shape of admiralty sentences as op- 
portunities occur, so as to bind the independent 
nations of the universe, is a proposition so mon- 
strous, that to be rejected it needs only to be 
stated. 

One of Grotius's commentators, speaking of 
his idea of a positive law of nations, re^narks. 



- [ 215 ] 

*' that the want of a voluntary union amongst the 
"several nations of the world, is the reason why 
" there is in this great society no legislative pow- 
"er." (2 Ruth. 463.) 

He was not aware of the boundless effect of 
admiralty sentences — or, instead of being able to 
find no legislative authority among nations, he 
would have discovered it to reside in every supe- 
rior Prize Court in Europe, under the semblance 
of judiciary power. 

In short, Mr. Gosling's position turns upon a 
total misconception of the true principle appli- 
cable to this question. The definitive sentence of 
an admiralty court is conclusive upon the subject 
of it, so as to justify the captor, establish his pro- 
perty, and divest that of the claimant. In reference 
to ordinary judicatures, the matter of such a sen- 
tence can never be drawn ad aliud examen. So 
far is true — but while in this view it operates 
conclusively by the common consent of mankind, 
and from the nature of the thing, it leaves open, 
or rather bc^gets, the question of injury and claim 
to compensation as between the nations of cap- 
tor and claimant ; the final quality of the sen- 
tence, m one reapcct, is the best reason why it 
should not be so in the other. It is by that final 
quality that the claimant's hopes of ordinary re- 
tribution are destroyed — it is that final quality 
that protects the captor from the just demands of 
the claimant — and it is that which completely 
transfers the original wrong from the captor to his 
government, who, by sheltering him through the 



[ 216 1 

instrumentality of an unquestionable judgment 
from all individual responsibility, takes his act 
upon itself, and shows its intention of standing the 
consequences. Can it be imagined that the bel- 
ligerent is relieved from its liability for the irregu- 
lar beliavioLir of its commissioned cruizers, be- 
cause it has done tiiat which renders this liability 
the only instrument of reparation ? Can it be be- 
lieved that it exonerates itself from the obliga- 
tion to repair eventually the wrong sustained by 
a neutral from its fleets and privateers, merely by 
refusing to compel compensation from the wrong 
doers I 

Among all tlie principles ever attempted to be 
established in former times, to the ruin of neutral 
commerce, and the introduction of lawless plun- 
der upon tlie ocean, none can be selected that 
equals this. If once it shall be admitted that an 
admiralty sentence inust be received as just, how- 
ever it may be in fact, there is no species of de- 
predation to which neutrals may not be subjected. 
The memoirs of France and the placartt of Hol- 
land, may be revived and executed in their utmost 
rigour without danger of reprisals: since, if con- 
firmed by admiralty sentences, their effects are 
not to be murmured against! Constructive block- 
ades may be set up vvithout limit, lor admiralty 
sentences can legalize them ! I do not mean to 
intimate that such would be the conduct of this or 
any other government in particular. It is enough 
that such VI ai/ be, (although we know that such 
has been) the conduct of maritime states; and I 



[ 217 ] 

am at liberty to argue agaiast a principle from its 
possible pernicious consequences. Heretofore it 
has been supposed that this sort of conduct found 
its only warrant in physical p nicer ; but the new 
principle, that admiralty sentences can justify 
every thing by an ex post facto purification, will, if 
it shall be adopted, place it upon the basis of mo- 
ral right ; or, in other words, it is a contrivance to 
make the law of nations uphold and justiiy the 
violation of its own rides. 

The law of nations is differently understood in 
different countries. In most countries the instruc- 
tions of the sovereign are held to be the Jaw of its 
admiralties, without reference to their coincidence 
with the law of nations. War has in general pro- 
duced such instructions, and they have not always 
been conformable to the only law by which Prize 
Courts ought to determine. A neutral nation, how- 
ever, has a perfect right to have the claims of its citi- 
zens in matters of prize decided according to the 
low of nations, let the instructions of the belli- 
gerent government be what they may ; but this 
right never has been, and never will be, regarded 
by maritime jurisdictions, whatever we may be 
told to the contrary. It follows, that the rights 
of neutrals are often sacrificed ; but, being sacri- 
ficed by admiralty sentences, acting upon the in- 
structions of the government, there can be no 
remedy for the neutrals, if these sentences, though 
notoriously founded on instructions at variance 
with the law of nations, are to be conclusively 
presumed to be in exact conformity with that law. 



[ 218 ] 

Thus, although the instructions were unlawful, 
and the seizure under them equally so ; — although 
the condemnation was evidently unjust, and the af- 
firmance in the last resort (of course) no better; 
although by this illegal series the neutral was 
oppressed, and the rights of his nation violated 
in his own — the affirmance in the last resort, by a 
retrospection peculiarly operative, sanctioned the 
whole transaction ; thus beginning, progressing 
and ending in wrong, and by accumulating one in- 
jury upon several others, left no injury remaining ! 

Without going into further detail on this part 
of the subject, (upon which I have already said 
more than I believe to be necessary) it may, I 
think, be safely concluded that the sentence of 
the Lords did not, and cannot, bind the neutral 
claimants or their nation to deem it just ; but that, 
on the contrary, if in truth it was otherwise, that 
sentence was the unequivocal perfection of the 
original injury produced by irregular or illegal 
capture, and gave to the claimants and their na- 
tion a complete right by the law of nations to 
seek reparation for the loss and damage result- 
ing from such capture against the government of 
Great Britain. 

, Independent of the treaty, such unquestionably 
wouM have been the law. It is now to be seen 
how far the establishment of this conclusion is 
entitled to influence the construction of the treaty, 
with a view to the case before us. 

The preamble of the 7th article sets forth a 
complaint on the part of divers American citizens, 



[ 219 ] 

•' that during the course of the war in which his 
Majesty was then engaged, they had sustained 
considerable losses and damages by reason of 
irregular and illegal captures or condemnations 
of their vessels and other property, under colour 
of authority or cofiimissiotts from his Majesty ;" 
and '' that from various circumstances belonging 
to the said cases, adequate compensation for the 
said losses and damages could not then he ac- 
tually obtained, had and received, by the ordi- 
na7 y course of judicial proceedings.^^ 

Such were the grievances existing, or suppos- 
ed to exist, at the time of making the treaty, for 
the reparation of which the British government 
was ultimately answerable by the laic of nations y 
as has been already shown. Upon the principles 
above staled, however, it is apparent, that, gene- 
rally speaking, the responsibility of the British 
government to the American claimant was, at the 
time of making the treaty, (even supposing his 
complaint to be well-founded in regard to the 
capture or condemnation) incomplete. 

It did not then appear that justice was unat- 
tainable by the claimant against the captor 
through the Lords of Appeal, since at that time 
the Lords had decided nothing. The law of na- 
tions declares, that before the neutral shall have 
any demand against the captor's government, he 
shall endeavour to obtain redress against the 
captor himself by all the judicial means in his 
power. At the time of making the treaty such 
endeavours had not been used by the American 



[ 220 ] 

clairoants to the extent required, for the most for- 
ward of their cases were still sub jiidice. There 
had been no denial of right (in the language of 
Grotius) by tlie Lords of AppeaL The sentences 
of the inferior courts had not (in the language of 
Rutherforth) been in any instance confirmed, or 
in any shape acted upon by the superior. There 
had not been even an unreasonable delay of jus- 
tice against the captor. It follows that the Ame- 
rican government was not authorized to demand 
from the British government immediate and. un- 
conditional compensation for the captures or 
condemnations of which its citizens complained ; 
since (even supposing them to be irregular or il- 
legal, as alleged) it was yet to be known whether 
the claimants could or coidd not procure indem- 
nification against the captors in the ordinary 
course of justice ; and this could only be known, 
in cases where there were responsible captors, 
by the direct or analogous determinations of the 
Lords of Appea!. The framers of the treaty 
were to adapt their stipulations to a state of things 
which had not yet arrived, but which it supposes, 
and upon which it was to operate. They were 
to adapt it, in a word, to the rights of the one 
party and the eventual obligations of the other. 
They do not provide, therefore, " that for the 
" losses and damages arising from the irregular 
" or illegal captures or condemnations complain- 
" ed of, the British government will, at all events, 
" make compensation ;" but th"y provide as fol- 
lows : " that in all such cases, where adequate com- 



[ 221 ] 

" pensation cannot, for whatever reason, he now 
" actually obtained, kacfand receivd by the said 
*' fiierchants and others in the ordihary course of 
^^ justice, full and complete cornpen^aiion for the 
" same will be marie by the British government 
*' to the said complainants." 

The treaty was made before events had paved 
the way for its immediate effect. It trjkes up the 
subject of national redress by anticipation. It 
states the ingredients necessary to constitute a 
valid demand under it, although all the requisite 
ingredients did not, and could not, then exist. It 
imposes it upon the claimants as a duty to seek 
redress against the individual wrong-doer by all 
competent ordinary means, the result of which 
could not then be foreseen ; and it is upon the 
eventual failure of such means, without any laches 
on his part, that it authorizes him to seek repara- 
tion from the government of Great Britain. Such 
a provision, if I comprehend it rightly, is pre- 
cisely what the law of nations would dictate, and 
is framed in the very spirit of that law. The eminent 
negociators who adjusted it seem to have had in 
their view not only the substance but the words 
of what is said by Grotius in a passage before 
cited, that the neutral has no claim to compensa- 
tion from the state to which the wrong-doer be- 
longs, " whilst he may recover his right in a ju- 
dicial way." 

Those who place a different interpretation upon 
the treaty, say " that it refers to cases to which 
" circumstances belonged, that rendered the pow- 

29 



[ 222 ] < 

" er of the Supreme Court of this country, act- 
*^i/forac(Of'ding to its ordinary rules, incompe- 
" tent to afford complete cofnpejisationJ'''* 

So far as this coiiJ^truction professes to stand 
upon the spirit of the treaty, or to execute the 
probable views of the contracting parties, I op- 
pose to it the consideration that it stops short of 
such an engagement on the part of Great Britain 
as the law of nations would prescribe. 

That law does not measure the responsibility 
of a belligerent for illegal captures, as prize, 
merely by the powers which it chooses to vest in 



* The cases admitted to come within this interpretation are, 
so fiir as I have been able to collect, as follows : 

In cases of seizure, under the revoked orders of council, the 
Lords have held, that they are bound, upon a reversal of the 
condemnation, to consider the captor as so far justified b_y them, 
as to be excused from costs and damages. In such cases, there- 
fore, it is supposed that the commissioners have, with a view to 
those costs and damages, power to award them against the British 
government. 

W here restitution is decreed after a sale, the Lords are bound 
by the Prize Act to give no more than the nett proceeds, and if 
these proceeds should be short of adequate compensation, it is 
supposed that we have the power to award the deficiency against 
the British government, since the Lords were incompetent by 
an act of parliament to award it against the captor. 

Where the captor, become insolvent, so as that the claimant 
cannot procure payment of a decree of restitution, &c. without 
any fault on his part, we are suppo^d to have jurisdiction. 

Where any fact other than the claimant's negligence has dis- 
abled the Lords from entertaining an ap;>eal, we are supposed to 
have jurisdiction. I have not heard of any specific cases under 
this head» 



[ 223 ] 

its tribunals, or the checks it thinks proper to ina- 
pose upon tho.se powers. It measures it also by ihe 
legality or the illegality of their decisions, com- 
pared with the law of nations, where their pow- 
ers are confessedly commensurate with the pur- 
poses of justice. According to that law, as I have 
shown above, an illegal sentence by the Lords, 
confirmatory of an illegal capture to the prejudice 
of a neutral, is a national wrong, for which the 
British government is to make amends. In every 
correct idea of the subject, the act (if the court is 
the act of the nation. The seizure upon which 
it operates, was an act for which the state was 
accountable in default of judicial retribution. 
The judgment of the Lords shuts up every ave- 
nue to such retribution, and of course makets the 
nation answerable definitively, instead of remov- 
ing or lessening its precedent liabiliiy. 

The revoked orders of council, under which 
many American vessels were captured contrary to 
the law of nations, and which are held to bind the 
Lords to excuse the captor from costs and dama- 
ges, or the act of parliament compelling the Lords 
to grant only the nett proceeds upon a decree of 
restitution, were no more national acts, for the 
injurious efi:ects of which the government was to 
be charged, than the misuser of its prize juris- 
diction, by those to whom it has entrusted it, in 
confirming a capture which the law of nations 
condemns. The state is as much chargeabh^ for 
the infringement of neutral rights by the c^ uticil 
in its judiciary character, as by the same council 



[ 224 ] 

in its executive, or any other character. It can 
only result from a misconception of the subject, 
that we should attach national responsibility to 
the latter, and yet exempt the former from all ob- 
ligations to recompense. If there is a national 
authority (and it is admitted there is) for the ex- 
ercise of which a state is answerable to foreign 
powt-rs, and their members, it is peculiarly that 
which the law of nations, and not civil institution, 
has communicated. 

Territorial jurisdiction more immediately be- 
longs to the government that claims it. It is more 
absolute and exclusive, because it is founded upon 
the domain of the society within which it is ex- 
erted, and springs from their common will, and 
theirs only. 

But prize cognizance has its basis in the law, 
which all states have an equal interest in, and to 
which all are parties. Its objects are the rights 
of all — its essential principle the equity of all. 
It is admitted that the British government is re- 
sponsible, not only by the law of nations, but even 
under the 7th article of the treaty, for the losses 
sustained by citizens of the United States, by 
reason of an act of the British parliament, 
which makes the nett proceeds, in prize causes, 
the measure of restitution, even after the rule 
established by that act has been judicially sanc- 
tioned. 

If there is any difference between the power of 
legislation vested in the parliament of Great 
Britain, aiid the judiciary power vested in its 



[ 225 ] 

Courts of Prize, witli a view to plenitude or ex- 
clusiveness, we can be at no loss to discover on 
which side the difference lies. Can it be thous^ht 
that, if the former power, sovereign, pre-eminent, 
and completely exclusive as it unquestionably is, 
cannot justify the violation of neutral rights, — 
the latter, deriving its existence from the g-enerai 
law which belongs to civil societies, and founded 
upon their relative independence, is thus omnipo- 
tent 1 It is inconceivable, that while the British 
nation is answerable for wrongs produced by the 
acts of its constitutional legislature, even after 
they have received the sanction of Admiralty 
decrees, the acts of its Prize Courts, having no 
warrant in any law whatsoever, can be lifted 
above the reach of inquiry or exception. And 
here it is proper to notice a suggestion, which we 
have heard more than once deliberately repeated, 
that it is highly improbable that Great Britain 
would consent that the decrees of its highest 
Court of Prize should be brought into question. 
Without stating the particular manner in vrhich 
this improbability has been inferred, it may be 
sufficient to observe, that, if the suggestion is 
grounded upon any supposed right on the part of 
Great Britain to insist on the conclusive nature of 
such decrees, we have already seen that, however 
such a right may be supposed, it does not in truth 
exist. If it be rested on any other ground, it 
may be answered, that Great Britain has consent- 
ed to submit the justice of one of its highest acts 
of sovereignty (an act of parliament) to our de- 



[ 226 ] 

termination^ — and has also consented to subject to 
our opinion the propriety of a rule of prize cog- 
nizance necessarily flowing from, or rather in- 
cluded in, an order of his Majesty in council, 
and adopted in practice by the Lords. Can there 
be any just sense of national pride or respect for 
national jurisdiction or prerogative, fairly attri- 
butable to a great nation, which will allow it to go 
thus far in a scheme of equitable retribution for 
injuries to a friendly power, produced in the heat 
of an unprecedented war, and yet induce it to 
hold up the sentences of its maritime tribunals as 
defying impeachment, and to exact from all the 
world a blind and superstitious faith in their 
legality ? 

From the foresfoing considerations it will be 
pretty manifest that (unless the words of the 
treaty necessarily import as much) there is no 
reason to believe that the frame rs of that instru- 
ment intended to bottom the liability of the Bri- 
tish government, in regard to the captures and 
condemnations complained of in the preamble to 
the 7th article, upon any specific wa^it.of power 
in its Supreme Court of Fnze to grant com- 
plete compensation; but on the contrary, that it 
ought to be presumed (if the words of the article 
will bear us out in it) that they intended to pro- 
vide for and efl'ectuate that more extended and 
rational responsibility which the law of nations 
indicates. 

Whon we are acquainted with the measure of 
redress which the neutral had a right to demand, 



[ 227 ] 

and the belligerent was under every obligation to 
assent to, it does not seem reasonable to infer 
that the treaty was meant to fail of giving full 
effect to them. An interpretration of an instru- 
ment of redress between nations which cannot 
be referred to any conceivable estimate of the 
rights of the party seeking, or the moral duties 
of the party conceding the redress, cannot lay 
claim to attention upon any other footing than that 
it arises uii avoid ably from the positive and restric- 
tive language of the stipulation. An interpreta- 
tion of such an instrument, which precisely quad- 
rates with the reciprocal rights and obligations 
of the parties to it, is such a one as must be re- 
ceived, and will be received, by the common sense 
of mankind, if it can be sustained icithoat vio- 
lence to the letter of the contract. 

It is said by Rutherforth and other respectable 
jurists, " that even where words are capable of 
two senses, either of which will produce some 
effect, you shall take that sense which is reason- 
able and consistent tcith that law which applied 
to the subject;''' and again, "that where nothing 
appears to the contrary, the presumption is that 
the parties meant what they ou<j:ht to mean. (2 
Ruth. Inst. Natl. Law, p. 826, 7.) 

It is in this view that J h;ive supposed it to be 
important to ascertain by a preliminary inquiry 
that neither the United States, nor the claimants, 
their citizens, were bound to receive as just the 
sentences of the Lords, unless rhey were so in 
fact— that such sentences if unjust, instead ef 



[ 228 ] 

shaking off the responsibility of the British na- 
tion for the losses and damages resulting from 
illegal captures and condemnations, produced the 
perfection of that responsibility, and gave to the 
United ;^tates an indisputable right, by the law of 
nations, to require of the British government, in 
behalf of its citizens, adequate compensation for 
those losses and damages. It will now follow 
that, even if the words of the 7th article will admit 
of two constructions, one of which shall be agree- 
able to the foregoing result, and the other to the 
opinion of the agent, it is our duty to adopt the 
former. And it will now be in our power to esti- 
mate more accurately the import of every efficient 
term in the article. 

The truth is, that without forcing upon the lan- 
iTuao-e of the clause a meaning not to be found in 
it, the agent's position cannot be countenanced 
by it : while on the other hand, that construction 
which suits, as I have shown, the nature of the 
subject regulated by the article, is such as the 
language of it would lead us to adopt. 

Let us now proceed to an examination of the 
letter of the article. 

I have already quoted the preamble, from which 
it appears that the allegation recited in it has a 
two-fold aspect. 

1st. That American citizens had sustained con- 
siderable losses and damages by reason of irre- 
gular or illegal captures or condemnations under 
eolour, &G. 



[ 229 ] 

2d. That from various circumstances belonging 
to their cases, adequate compensation could not 
then be actually obtained, liad and received by 
the ordinary course of judicial proceedings. 

The provision itself stipulates that in all such 
cases where adequate compensation for the said 
losses and damages cannot for whatever reason 
be now actually obtained, had and received, bi/ the 
said merchants and others, in the ordinary course 
of justice, full and complete compensation for the 
same will be made by the British government, to 
the said complainants, with a proviso that the 
stipulation shall not extend to such losses and 
damages as have been occasioned by the manifest 
delay, or negligence, or wilful omission of the 
claimants. 

Upon language so clear and definite, it is not 
easy to make comments with any view to further 
perspicuity. I will make the attempt however. 
We are to have jurisdiction, if it shall appear that 
the claimants could not, at the time of making the 
treaty,/or any reason whatsoever, (other than their 
own laches,) actually obtain, have and receive ade- 
qu^ compensation, in the ordinary course of 
justice. 

The claimants in the case before the Board 
have alleged and proved that they have made a 
complete experiment on this subject; they have 
alleged and proved that they have had recourse 
to the only tribunal competent to give them any 
redress in the ordinary course of justice, and that 
tribunal, after a full examination of their case, has, 

30 



[ 230 ] 

upon the special circumstance of it, absolutely 
and conclusivb'ly denied them any compensation 
whatsoever, without any delay or negliofence, &c. 
on the part of the claimants. Of the practicabili- 
ty i)r impracticability of obtaining judicial redress 
in any given case, one would tliink that no evidence 
could be so eminently satisfactory and appro- 
priate as the result of a fair and complete attempt 
to obtain it, in the only possible way in which it 
was to be obtained, if obtainable at all. It is 
not pretended on this occasion that the attempt 
was defectively made, or that its result is in any 
sort nscribable to the laches of the parties making 
it. It must be allowed on all hands, then, to have 
flowed from the ciixmnstances belonging to the 
case upon which the Lords of Appeal have pro- 
nounced a final decision. Indeed the decree of 
the Lords expressly says so. We have not heard 
it suggested that any expedient was open to the 
claimants by which they could have produced a 
different result, or, in other words, by which they 
could have obtained judicially the redress to which 
they say they are entitled — and it is certain that 
the sentence of the Lords has closed the subject, 
in a judicial view, for ever. If the claimants c5uld 
have obtained adequate compensation in the usual 
course of justice, it is natural to ask how does it 
happen that they have not obtained it? Have 
they not made every practicable effort towards 
that end \ Nobody denies it. Has not all com- 
pensation been definitively refused them upon 
the facts attending their complaint ? We all agree 



f 231 ] 

to this. It is of cou'se sufficiently proved that 
the claimants could not obtain judicial retribution. 
But it is said that this is not enough to gratify 
the treaty. I will at present take for granted, 
however, that it gratifies the term cannot — and, 
if it does, it will be difficult to point out any other 
words in the article which it does not gratify. It 
is contended that it must appear farther that the 
claimaftts could not obtain adequate compensa- 
tion on account of the zcant of power in the 
Lords of Apj)eal, acting according to their or- 
dinary rules to afford it. Although this idea is 
obviously short of what the contracting parties 
ou<rht to have tneant, and cannot be reconciled 
wiih the law apiilicable to the subject of the ar- 
ticle, yet if the language of it inevitably pointed 
to so inadequate a conception of its views, I should 
hold it to be my duty to adopt it. I have, there- 
fore, searched in the article for the restrictive spe- 
cification which confines the impracticability of 
obtaining judicial redress to that sort only which 
could be referred to nothing but the incompeten- 
cy of the powers of the Lords of Appeal. Upon 
examining the stipulation, however, which is sup- 
posed to contain this specification, or something 
equivalent to it, I am so far from finding it, that 
I discover the terms, actually used for the purpose 
of the definition it aims at, to be of peculiarly ex- 
tensive import, so wide and comprehensive as to 
be universal, and unclogged by any exception 
whatsoever, other than the exception of the mani- 
fest delay, S^c. of the claimants. 



[ 232 ] 

The language of the preamble is "from Ta- 
rious circumstances belonging to the said cases :" 
that of the provision itself is "for whatever 
reason.'^'' 

If the term " various circumstances^^ can be 
sii}>posed to mean no more than circumstances of 
a parfictdar description affecting the powers of 
the Lords ; or if the term "for whatever reason'" 
can be lessened down so as to mean no more than 
for a reason of a precise and peculiar nature — 
or if a designation of the largest possible range, 
evidently inserted to reach universality, can be 
converted arbitrarily into a designation of the 
most circumscribed and limited nature — then, in- 
deed, it mny be true that the article extends only 
to cases to which circumstances belotfged that ren- 
dered the poiccrs of the Svpi'eme Court of this 
coimtrif, acting according to its ordinary rules, 
incompetent to afford complete compensatioft. 

The slightest view of the article will serve to 
produce conviction that this selection of a par- 
ticular class of circumstamces or reasons, to the 
exclusion of all others, is a fanciful selection, not 
authorized by the article itself. The article does 
not prescribe to the claimants the precise indica- 
tion of any ciraimstances or reasons producing the 
failure of the judicial remedy. It is enough, un- 
less we put into the clause what is not there at 
present, that it is palpably seen that some circum- 
stances or reasons, other than the claimant's ne- 
glect, produced that failure ; and of this the sen- 
tence, dismissing the appeal upon the merits, must 



[ 233 ] 

be 'undeniable testimony — although neither the 
sentence nor the prior proceedings may cnnl)le 
us to identify the special fact or reason which 
stood between the claimants and the compensa- 
tion they demanded. 

In the case before the Board, the Lords have 
stated in their decree that they dismissed the ap- 
peal upon all the special circumstances of the case. 
If it were necessary to resort to every mode of 
illustration upon this question, it might here be 
observed, that when the Lords have, by a final 
sentence, assured us that on account of all the 
special circumstances of the claimants' case, ju- 
<iicial redress was refused them — we might ven- 
ture to conclude, in the language of the preamble 
to the 7th article, that there were " various cir- 
" cumstances belonging to the said case," by rea- 
son of which the claimants could not obtain, have 
and receive, adequate compensation, by the ordi- 
nary course of judicial proceedings. It will hard- 
ly be imagined that the term " various circum- 
" stances,'''' in the preamble of the 7th article of 
the treaty, is not at least equally as large with 
" all the special circumstances^^ in the Lords' de- 
cree — and it need not be insisted on, that if their 
lordships had shaped their sentence with studied 
reference to that article, they could not have 
framed it more aptly for the purpose of bringing 
the claim of the memorialists within its pale. 

Even if the treaty required it of the memorialists 
to specify the circumstances which made them 
incapable of procuring compensation before the 



[ 234 ] 

Lords, they are here enabled to comply with this 
nicety, inasmuch as they have the best warrant 
for saying that all the circumstances of the case 
concurred to constitute this incapacity. But sure- 
ly there is no necessity to be thus minute ; nor is 
it on many occasions possible to be so. We 
know that the miscarriage of the judicial remedy 
must arise from some circumstances belonging to 
the case from a reason of some description or 
other, and, if we are satisfied that such circum- 
stance or reason was not the neglect of the claim- 
ants, why are we to scrutinize further, since the 
treaty declares that it shall be totally immaterial 
what the circumstance or reason is, provided it be 
not such neglect ] We can put no other construc- 
tion upon the words ''for ichaterer reason,'''' with- 
out resorting to an equitable interpretation, more 
loose than any example will justify ; and if we 
have recourse to equitable interpretation, such 
as it ought to be, it has before been demonstrated, 
that it will only serve more decidedly to indispose 
us towards the desired restriction. 

But stress has been laid upon the word " r«7i- 
wo/," as if it related to want oj power in the Lords. 
And it has been asked, why the contracting par- 
ties did not (if my construction of the article is 
correct) use the words " shall not,^^ so as to mnke 
the clause read thus — " it is agreed that in all 
" cases where adequate compensation shall not, 
" for whatever reason, be actually obtained, had 
" and received, in the ordinary course of jus- 
" tice," &c. 



[ 235 ] 

It might be sufficient to say, in answer to this 
argument, that the word " cannof has not, in it- 
self, any exclusive relation to an impracticability 
of any particular description, and that when it is 
conjectured to refer to a defect of authority in 
the Lords, the conjecture has no foundation in 
the ordinary meaning of the word. But the ar- 
gument will admit of another answer more point- 
edly applicable to the latter branch of it. The 
words " cannot now^^ appear to have been used in 
preference to the words suggested, because they 
would exclude the claimants from compensation 
where failure of ordinary redress should be in 
consequence of their own neglect happening af- 
ter the making of the treaty, while at the same 
time they would completely open the door to com- 
pensation, where such failure was not produced 
by the fault of the claimants. The treaty contem- 
plated national reparation where no other was 
tcithin the power of the claimants, and, conse- 
quently, it has said, "where adequate compen- 
" sation cannot be obtained by the said merchants 
" and others.^' If it had said, " where adequate 
"compensation shall not be obtained," &c., it 
would have gone beyond the object I ascribe to 
it, sas well as beyond the responsibility of the 
British government upon it which it meant to act. 
If I am told here, that a proviso might have limit- 
ed and explained this looseness of expression — 
and in fact there is now such an explanation sub- 
joined to the provision as it stands — I answer that 
those who are framing a treaty must be supposed 



[ 236 ] 

to aim at as accurate a designation of their mean- 
ing as possible in tliat body of the provision they 
are modelling ; and that they are not to be sus- 
pected of adopting a phraseology unnecessarily 
wide of the views, in the hope of being able to 
correct it by a proviso ;— that as to the explana- 
tion which now makes a part of the article, it ap- 
pears to have no effect upon it with a view to any 
delay or negligence happening after the making 
of the treaty; for that such after negligence is 
guarded against solely by the words "cannot now," 
and if not xole/i/, it is at least sufficiently guarded 
against by those words. 

In short, the terms " cannot noio''' suited views 
such as I af.ribute to the makers of the treaty. 
The words " shall nof would have exceeded those 
views. 

It is said to be a rule in literal interpretations to 
follow that sense which is agreeable to common 
use, without attending to grammatical fancies or 
refinements. But surely there is much fancy and 
refinement, and very little attention to common 
usage, in construing words which state an imprac- 
ticability, for any cause to mean an impractica- 
bility for some special cause. He who says, "that 
if redress cannot, for whatever reason, be obtained 
in the ordinary course of justice, he will himself 
grant it," can hardly, without departing from the 
setded import of the terms, be made to mean 
merely " that he will grant compensation, if it can- 
not be obtained on account of some possible de- 
ficiency of power in a certain tribunal. ^^ If 



[ 237 ] 

the treaty had run thus — " Where adequate com- 
pensation cannot be adjudged or afforded by the 
Lords of Appeal, in their ordinary course of pro- 
ceedings," instead of " where adequate com/fen- 
sation cannot be obtained by the said merchants 
arid others,'''' there might have been room to argue 
that the incapacity of the Lords, by reason of the 
scantiness of their authority, was intended to be 
relied upon, and not the incapacity of the claim- 
ants ; the words as they now stand have no re- 
ference to the incompetency of the Lords, they 
point to the claimants' want of power to procure 
retribution, and they declare, moreover, that it shall 
be of no importance what this want of power ari- 
ses from, if it be not the precedent negligence of 
the claimants themselves. 

The practicability of obtaining judicial redress 
for a legal claim is one thing: the practicability 
of rendering it is another. They may depend on 
causes whollydistinct. If a proper case for relief 
is brought before a court of competent jurisdic- 
tion, it is practicable for that court to relieve ; but 
it may, notwithstanding, be true in regard to the 
claimant, that relief cannot be obtained ; for the 
court may mistake the law, and though empoicer- 
ed to do justice, refuse it. The treaty speaks of 
what can or cannot he procured by the claimants, 
under all the circumstances of their claims, by re- 
sorting to their ordinary remedy ; and not of what 
can or cannot be done by the Lords in acting 
upon that ordinary remedy. The first might, in- 
deed, depend in a great degree upon the last ; 

31 



[ 2S8 1 

but it did not wholly depend upon it; since the 
L » ds niiriit reject the clnimMnts' deiiiHiid f om 
error, i\^ w(dl as want "f power It is plain, there- 
fore, that before the agents' position canbe main- 
tained, the terms of the treaty must be radic dly 
altered. From a stipulation providing for cases 
in which \\\e parties injure'! cannot, /or whaferer 
reason, ohtairt redress beft)re the Lords, it must be 
changed into a stipul ition providing for cases in 
which the Lords caiinot, /or a, pa.rficular reason^ 
grant redress. That such a provision cannot, by 
any admissible mode of construction, be inferred 
from language which relates exclusively to the 
power of the suitor, and not to that of the tribu- 
nal, is too evident for argument. 

We can give countenance to this forced infer- 
ence in no other way than by fancyitig that both 
the coatra<'ling parties had such dependence 
upon the court of one of them, as to take it for 
granted that in all cases where that court had the 
poicf'r to do justice, it nec<\ssarily fo^! lowed tliat it 
would be procured from it on a proper application. 
But there is no part of the treaty which makes 
profession of such unbounned respect for tliat 
court, and there is no rule of the la.v of nations 
which prescribed such respect to the United 
States. On the contrary, the American govern- 
ment, by acting" upon such an improper depeii- 
dence on the possible legality of decrees which 
were yet to be pronounced, would have surren- 
dered by anticipation its indisputable right of 
questioning those decrees, if in reality they should 



[ 239 ] 

be unjust. Why are we to imagine that this was 
conteaiplated ? The treaty does not invite us to 
thi.s conclusion ; and Great Britain had no coK)ur 
to ask from the United States such a sacrifice. 
Are we then to uphold an interpretation of this 
instrument, which is not only unauthorised by its 
language, but is unsuitable to the subject of it, 
and at variance with the undoubt<^d rights of one 
party, and the duties of the other! What Great 
Britain could not properly demand, we are to 
suppose she did demand — what the United States 
ought to h »ve insisted upon, we are to suppose 
they abandoned ; and this is to be done not only 
without evidence, but in direct contradiction to 
the declarations of the parties. This is so far 
from being conformable to the rule cited from 
Rutherforth, that it seems to proceed upon a rule 
to this effect — r" that even where words will fairly 
admit of but one sense, and that, too, consistent 
with the law applicable to the subject, we are to 
force upon them a sense incongruous, with that 
law, and compel the contracting parties to mean 
what they ought not to have meant."* 

* But even if it were admitted that the parties to the treaty pre- 
sumed, that whert- the Lords had power to redress, they would 
always grant redress, and that they acted upon that presumption, 
in framing the 7th article — there is a correspond! nt presump- 
tion which it would appear, to be our duty to be guided by. I 
mean the presumption, that where the Lords have not rendered 
justice, they had not the power to render it — and consequently, 
that we have the power upon every interpretation of the article. 
I r iect this mode of estaMl-hing our jurisdiction, however, be- 
cause I do not believe that the framers of the treaty acted upon 
the first presumption. 



[ 240 ] 

It is said by Vattel, (b. 2, ch. 17, s. 266,) "that 
"on every occasion, when a person has and ought 
" t^ have shown his intention, we take for true 
" against him what he has sufficiently declared. 
" This is an incontestible principle applied to trea- 
" ties," &c. 

(Id. ib. sect. 264.) "If he who who can -and 
" ought to have explained himself clearly and 
" plainly, has not done it, it is worse for him : lie 
*' cannot be alloicid to introduce .mbsrqyent re- 
" strictioiis which he has not expressed.^'' " There 
" can be no secure conventions, no firm and solid 
" concession, if these may be rendered vain by 
" subsequent limitations, that ought to have been 
"mentioned in the piece, if they were included 
" in the intentions of the contracting powers." 
Nothing can be plainer than that the limitation 
now attempted to be imposed on the 7th article of 
the treaty, (which, in relation to the subject now 
before us, is the stipulation of Great Britain,) is a 
subsequent rcstrictioyi not exprtssed in the article it- 
self. The application of the above extracts from 
Vattel is peculiarly strong upon this occasion — 
not only because the language of the 7th article, so 
far from being mysterious and equivocal, clearly op- 
poses itself to the restriction suggested; not only 
because the restriction is inconsistent with every 
just idea of the neutral rights and obligations of 
the contracting parties, and such a one as the 
matter of the contract does not naturally admit ; 
but also, because the framers of the article have, 
in the adjustment of its form, evinced their anxie- 



[ 241 ] 

ty to guard from a too enlarged construction 
by an explanation subjoined to the body of the 
clause, and yet have not added any explanation 
which gives a colour to this limitation. The con- 
cluding part of the first paragraph of the article 
is satisfactory proof that those who framed it 
were attentive to the precise effect of their act, 
and had considered the means of preventing it 
from being stretched beyond their views. When 
we thus find the negociators of the treaty em- 
ployed in weighing the import of the terms in 
which they had conceived this provision, — when 
we find them occupied in bounding them by a 
proviso, so as to fit them with exactness to their 
object, it is not to be credited that they would 
have omitted the important limitation which has 
since occurred to the agent, if, in truth, they in- 
tended so to narrow the scope of the clause. 
Surely if it was meant to assert the infallibility 
of any particular judicature, in opposition to the 
words of the provision, an object which is sup- 
posed to have been preserved so steadily in the 
view of one of the parties, would not have been 
neglected at the time when explicitness upon a 
subject of infinitely inferior consequence was so 
cautiously attended to. I forbear to enlarge fur- 
ther on this point, because I wish to avoid unrea- 
sonable ju'olixity; but I think I have already said 
enough to prove that the objection to our jurisdic- 
tion is unfounded. 



[ 242 ] 

Upon the ryiRUiTS of this case, a question has 
occurred, which requires to be examined. 

Two of the commissioners have held, that on 
facts disclosed in the case of George Pfitterson, 
the owner of the brig, and part owner of the car- 
go, was, during and by reason of his stay in Gua- 
daloupe, (an enemy's territory.) liable to be treat- 
ed as an enemy to Great liritain by those acting 
under its authority ; and of course, that his proper- 
ty sent out frosn Guadaloupe and seized by a Bri- 
tish cnizier, while he remained in that island, was, 
by the law of nations, rightfully subject to con- 
demnation as prize. 

The facts are these — William and George 
Patterson (the claimants) w-ere citizens of the 
United States, and partners in trade, resident and 
carrying on business at Baltimore. The; brigan- 
tine Betsey was the sole prop«Mty of George Pat- 
terson- She sailed from Baltimore for 1 he West 
Indies on the 19th I December, 1793, with a cargo 
of flour, butter, and specie, belonging jointly to 
the said partners. George Patterson sailed in 
her as owner and supercargo. The vessel pro- 
ceeded to Guadaloupe (her port of destinalion) 
where she arrived on the Hth of January following, 
and there delivered her cargo to the said George 
Patterson. The cargo (at least the provision part 
of it) was taken from him by the administration 
of the island l>y force, with a promise of payment 
of its value. He loaded on hoard the said brig a 
return cargo, the produce of the island, and des- 
tined her therewith to Baltimore, remaining him- 



[ 243 ] 

self at the said island ; and she accordingly sailed 
from Giiadaloupe on the 18?/* 0/ J/«rcA, hound 
on her said intended voyage : in the prosecution 
ther-.^of, she was on the iOth of the same month 
(two days after her departure from the island) 
met with and taken as prize, by the British private 
sloop of war Agenoria. It appears by the evidence 
found on board the brig, that George Patterson 
had no intention of settling in Guadaioupe ; that 
his stay was meant to be for a short time only, 
(until the Betsey should return with another car- 
go;) that his views were to procure from the admi- 
nistration of the island, payment for cargoes 
w^hich they had taken from him and his partner, 
and while he stayed to mnnage the affairs of the 
concern and conduct the lawful trade in which it 
was enffasfed to the best advantage. No act is 
provetl to have been done or contemplated by him 
inconsistent with his neutral characterand duties. 
The allegation that when he went to Gua la- 
loupe it was in a state of l)locka(t( (nn assumed 
fact upon which the condemnation at Bermudas 
appears to have been founded) is admitted to be 
false. The suggestion that during his stay in the 
island, it was notoriaush/ expected to be bloc/faded, 
is unsupported by the shadow of evidence — and if 
it were proved, it would be idle and unconsequen- 
tial. It cannot be necessary to argue that the ex- 
prrfat.ion of a blockade does not render provi- 
sions contraband, or in any shape interfere with 
th • frs?e lom of neutral comsnerce. We are all 
agreed that there cannot be a constructive block- 



[ 244 ] 

ade to the prejudice of the trade of neutrals — 
and after this concession, it would be absurd to 
waste time in showing that the mere expectation 
of a blockade, when none exists in fact, or can be 
made out constructively, is not entitled to have 
that effect. 

His sending to America for another cargo of flour 
after the administration of the island had taken 
the Betsey'' s cargo by force, was not the act of an 
enemy to Great Britain, but strictly lawful for him 
to do so as neutral. Is he to be called an enemy 
to Great Britain, because he did not petulantly re- 
sent the infringement of his rights by a colonial 
government of France ? — and is he to be subject- 
ed to plunder, without retribution, by British 
cruizers, because a Guadaloupe administration, 
having seized his property under a promise of 
adequate compensation, he has thought proper to 
submit to this wrong, and even to hazard the re- 
petition of it r If he chose to act thus, in the ex- 
pectation of that profit which is the object of trade, 
what right has Great Britain to complain \ The 
administration took his property not theirs ; and 
if he discovered it to be more prudent to be silent 
on the subject, to wait for the promised payment, 
and even to import another cargo similar to the 
former, while he was so waiting, under a risk of 
similar violation, he has neither done nor intend- 
ed any thing injurious to Great Britain, — provided 
the cargo imported was such as the law of na- 
tions did not prohibit. 

If the reverse of this doctrine were true, I do 



[ 245 ] 

not know that the citizens of the United States 
could, since the year 1795, be at liberty to bring 
provisions to Great Britain without becoming 
enemies to France. For during that year the go- 
vernment of this country went far beyond the 
administration of Guadaloupe, in seizing and ap- 
propriating the provision cargoes of American 
citizens. 

In a word — the views with which George Pat- 
terson went to, and remained at, Guadaloupe, 
were fair and warrantable, — the trade he was pro- 
secuting was not forbidden, — his conduct, while 
in the island, was, in all respects, such as the law 
of nations allows and prescribes to neutrals, — his 
stay there was intended to be, and in fact was, tem- 
porary, — he did not become an inhabitant of the 
island, but was a mere sojourner in it for special 
limited purposes lawful in their nature. 

Still, however, it is said that his residence there, 
such as it was, made him, under all circumstan- 
ces, the enemy of Great Britain. 

In order that I may be distinctly comprehend- 
ed in what I have to urge against the above opi- 
nion, I will begin with stating that I understood 
the law of nations, as applicable to this question, 
to be as follows : 

Neutral stangers who settle, or, in other words, 
take up a fixed residence for permanent purposes, 
however lawful they may be, in the territory of a 
belligerent nation, flagrante bello, and thereby 
become united to, and, sub modo, citizens or sub- 
jects of it, are liable to be treated as enemies by 

32 



[ 246 ] 

the opposite belligerent ; but neutral strangers^, 
who merely pass or .sojourn in the territory of 
a belligerent nation, for the management of their 
affairs, or in quality of travellers, or for in any other 
lawful temporary object, not hostile to the oppo- 
site belligerent, are not so liable to be treated. 

From Vattel, abundant sanction is derived to 
this distinction. 

(Vattel, b. 1st, ch. xix.) In Sect. 212—213, of 
this chapter, the author treats of the citizens and 
natives of a country, and of its inhabitants, as dis- 
tinguished from citizens, who are in some sort 
bIcHided with the society into which tliey have en- 
tered ; and these again he afterwards distinguish- 
es from temporary sojourners in the predicament 
of Mr. Patterson. 

5Sect. il3. " The rnhahitants, as distinguished 
*' from citizens, are strangers who are permitted 
*' to settle and stay in a country. Bound by their 
" residence to the society, they are subject to the 
"laws of the state while they reside there, and they 
" are ohH<ied to defend it, because," &c. 

■^i'he actual inhabitants then, here meant by 
Vattel, are such as are in some degree incorpora- 
ted with the nation, and are lialde to the duties of 
citizenship, although not enjoying all its advan- 



tages. 



tSuch inhabitants have, doubtless, the quality 
of enemies, in respect of a nation at war with 
that in which they reside, — because they have 
voluntarily united thejnselves to the enemies of 
that nation, subjected themselves to their control, 



[ 247 ] 

bound themselves to defend their interests dur- 
ing their stay, adopted their prejudices and their 
enmities, and in short acquired in their country a 
citizenship complete as to duties, though not so 
as to privileges. 

The same author says, in Sect. 215 of the above 
chapter, speaking of a man who has left his own 
country: " If he basjixtd his abode in a foreign 
" country, he is become a member of another so- 
" ciety, at least as a perpetual inhabitanty &c." 

But how is it with sojourners, whom Vattel dis- 
tinguishes from inhabitants f 

(Vattel, b. 2d c. 8th s. 99th.) " We have al- 
" ready treated (b. 1st c. 19, already quoted) of 
"the inhabitants, or of the men who residr in a 
" country where they are not citizens. Wc shall 
" only treat here of the strangers who pass or so- 
"journ in a country^ for the management of their 
" affairs, or in quality of mere traretlersS'' 

Sect. 101. (•'^peaking of such sojourners.) 
" But even in the countries where every stranger 
" freely enters, the sovereign is supposed to allow 
" him access only upon this tacit condition, that 
" he be subject to the laws ; I mean the general 
" laws made to maintain good order, and which 
" hate no relation to the title of citizen or sub- 
^'ject of the state. ^^ 

Sect. 105. (Same subject.) " From a sense of 
" gratitude for the protection granted him, and 
" the advantages he enjoys, the stranger ought not 
" to confine himself to the respect due to the laws 
" of the country ; he ought to assist upon occa- 



[ 248 ] 

" sion, and to contribute to its defence, as much 
" as his being a citizen of another state may per- 
" 7nit him. But nothing hinders his defending it 
"against pirates and robbers; against the r«- 
" vages of an inundatio7t or the (ievastations of 
"flre.^^ The author in this place, evidently sup- 
poses that (nlthough in the case of an inhabitant 
or fixfd resident,) every duty of a citizen is on 
such inhabitant while he continues, so there is no 
obligation upon a sojourner or temporary resident 
to assist in defending the country in a solemn 
war; and of course, that there is no obligation 
upon him inimical to the nation with which that 
country is in a state of hostility. But in Sect. 
lOtJ, he is still more explicit. 

Sf.ct. 106. *' Indeed he cannot be subject to 
" the taxes, which have only a relation to the citi- 
" zens ; but he ought to contribute his share to all 
" the others. Being exempt from serving in the 
" militia, and from the tribute destined for the 
" support of the rights of the nation, he will pay 
"the duties iraposcnl on provisions, merchandise, 
" &c., and, in a word, every thing has only a re- 
" lation to his residence i7i the country, and the 
" affairs ichich brought him thither. ''"' Thus then 
it is obvious that a neutral, who sojourns in one 
of the countries at war, for ihe purpose of manag- 
ing his affairs, and does not become a settler in, or 
inhabitant of, the country, cannot, by reason of 
such sojourning, be considered as having subject- 
ed himself to any obligations injurious to the op- 
posite belligerent, as having associated himself 



[ 249 ] 

with its enemy, or as having lost the purity of 
his original neutral character. It appears that, 
notwithstanding such sojourning, he continues 
uujler the pressure of all his former duties as a 
neutral, and acquires none that are inconsistent 
with them. 

To call such a man an enemy is to do violence 
to common sense. 

Sect. 107. (Same subject) " The citizen or 
"subject of a state icho absents himstlf Jar a 
" time tcithiiut any inieniion to abandon the so- 
" ciety of ichic/i he is a member, docs not lose 
"his privilege by his absence; he preserves his 
" rights, and remains bound by the same oblifia- 
" tions. Being received in a foreign country in 
" virtue of the natural society, &c., he ought to be 
*' consilered there as a member of his own nation^ 
" and treated as such." 

The nation then, with whom a neutral stranger 
sojourns, is, by the law of nations, to consider and 
treat him as a member of his oxen country: It 
cannot compel him to assist it in its hostile efforts 
against its enemy, or even in its defence against 
that enemy. He continues, notwithstanding his 
residence, to every purpose of the war, offensive 
or defensive, as much a neutral as if he was still 
n his own country. And yet it is imagined that 
the opposite power at war, merely on the ground 
of his residence, which does not alter his charac- 
ter, and is in no respect unlawful, may consider 
and treat him as an enemy ! 

Why is it then that neutral goods feund in an 



[ 250 ] 

enemy's territory are not liable to confiscation, 
if the quality of the place, where a neutral shall 
himself be found, attaches itself thus powerfully 
to him \ 

If this doctrine against which I am now con- 
tending were true, the converse of it would be al- 
so true. If place and not character is to fix a 
man as friend or enemy, an enemy would cease 
to be so as soon as he quitted the territory of his 
nation. Surely the character of enemy may be 
thrown off by the same means by which it may 
be acquired, where parallel means are practica- 
ble. But " enemies continue such, (says Vattel,) 
" (b. 3, c. 5, s. 71,) wheresoever they may happen 
" to be. The place of ahodf is of no account. It 
" is the political ties which determine the quali- 
*' ty." Here is the true criterion by which friend 
or enemy is to be ascertained. The political ties, 
not the locus in quo, designate the quality. Has the 
party duties upon him in favour of one of the belli- 
Sf'^rents a^rainst the other, which, if calhd into ac- 
tion, would be iiostile in their effects ? If he has, no 
matter in what part of the worhl he shall be found, 
he is an enemy. If he has ?iot, you cannot treat 
him as an enemy, without tran)pling upon the laws 
of nations, although you sliould find him in ihe 
hea»t of the country with which you are at war.* 

1 have already shown that a sojourner in a 
country with temporary views, or one who has not 

* This is upon a supposition that he does no act hostile in its 
nature, as in the case of Mr. Patterson. 



[ 251 ] 

in fact settled in it^ has no such political ties to 
thcit country as to make him an enemy to those 
with whom it may be in a state of hostility — that 
his duties do not point to the annoyance of any 
nation — and that the obligations which bind him, 
are as perfectly neutral as those he brought 
along with him. 

The foregoing observations are confirmed by 
Burlemaqui's Principles of Political Law. (p. 281, 
s. 6.) " As to strangers, those who settle in an ene- 
" my's country after a war is begun, of which th<^y 
"had previous notice, may justly be looked upon 
" as enemies." 

P. 299. " It is also certain, that in order to ap- 
" propriate a thing by the right of war, it must be- 
" long to the enemy ; — for tilings belonging to 
" people who are neither his subjects, nor aniina- 
" ted with the same spirit as he is against us, 
" cannot be taken by the right of war, even 
" though," &c. 

By settlers in a country, it will not be imagined 
that those are meant who sojourn in it with tem- 
porary views, and who come without any intention 
of abandoning their own country, or becoming m- 
habitanfs of another. In the description of*' those 
" icho are animated, icith the some spirit against 
" M •," it will not be supposed that those are in- 
cluded, who, with a complete neutral character 
and with every neutral oldigation upon them, go 
for a time into the belligerent country on a law- 
ful errand, having no relation to iiostility — and, 
while there, take no improper part in the national 



[ 252 ] 

quarrel, but confine themselves to the object which 
brought them thither — who bind themselves by no 
ties to the nation in whose territory they are, at 
variance with those which marked and constituted 
th.?ir neutrality, and who continue as free from 
any duties, adversary to either of the contending 
parties, as if they had remained at home. 

It is plain that Burlemaqui's meaning is the 
same with that of Vattel. By settlers he intends 
those whom Vattel calls inhabitants, who may 
fairlv be presumed to be animated icith the same 
spirit with the nation with whom they have per- 
manently mingled, to whose interests they have 
joined their own, and under whose subjection they 
have placed themselves. Such may be said to 
, make common cause with the nation and to adopt 
its quarrel. Thus far the doctrine may justly be 
carried ; but when a neutral trader goes into an 
enemy's territory for a few weeks to conduct a 
legal trade, to call in precarious debts, or to do 
any other act connected with a commerce which 
no law condemns, when, during his stay, he does 
nothing to make common cause with the enemy, 
or to evidence his intention of espousing its quar- 
rels, it is so manifestly unreasonable to call him 
an enemy upon such a foundation, that no argu- 
ment can lend even a colour to it. 

Lee on Captures, (p. 65) gives us his opinion 
on this subject precisely in the words of Burle- 
maqui, and accounts no strangers as enemies but 
such as settle in the enemy's country. 



£ 25S ] 

The following is copied from a manuscript note 
of Lord Camden's opinion in two of the 8t. Eii- 
statius' cases, (Harmonic and Jacobus Joannes,) 
heard on the 10th of February, 1785, put into ray 
hands by a respectable gentleman in the profes- 
sion. 

" If a man went into a foreign country upon a 
"visit, his travels for health, to settle a particular 
" business, or the like^ — of such persons, so tem- 
" porarily residing, he said, he thought it would 
*' be hard to seize upon their goods. That a re- 
" sidence not attended with these circumstances 
" ought not to be considered as a permanent resi- 
" dence." 

In applying the evidence and the law to the re- 
sident foreigners in St. Eustatius, he said — " In 
" every point of view they ought to be deemed 
" resident subjects. Their persons, their lives, 
" their industry, are employed for the benefit of 
" the state under whose protection they lived ; 
" and if war broke out, they continuing, they paid 
" their proportion of taxes, imposts, and the like, 
" equally with natural born subjects, and no doubt 
" come within that description." 

The note concludes with stating, " that the 
*' goods in both ships (viz. the Harmonic and Jaco- 
" bus Joannes,) were condemned (except those be- 
" longing to Erutz) upon the ground of perma- 
" nent residence or inhabitancy of the owners in 
" an enemy's territory." 

The ground upon which the property of Erutz 
was excepted from the condemnation, is stated in 

33 



[ 254 ] 

the note to be, " that he was an occasional resi- 
dent at Amsterdam.'''' 

It is evident from this opinion of Lord Camden 
that he did not consider a temporary sojourner 
in an enemy's country as the proper object of hos- 
tility, but that he rested his decision wholly on 
the fact of permanent inhabitancy, a fixed and 
settled residence. Such was the doctrine in this 
country formerly ; and, if it has been changed, it 
will not be easy to prove that the change is justi- 
fied by the law of nations. 

Even the form of the commission of reprisals 
issued by this country, during its present and for- 
mer wars, concurs to establish the distinction 
with which I set out. It gives authority to seize 
property belonging to France, or to any persons 
being sid)jects oi YvdncG, or inhabiting within 
any of the territories of France. Such also is 
the language of the different prize acts. 

We have seen in Vattel the true notion of an 
iiihabifant, and it cannot be pretended that a 
temporary sojourner does, even in common par- 
lance, come within th(; meaning of that term. 

The only authority which has been mentioned 
at the Board as opposed to the principles I have 
endeavoured to establish, is a passage in Gro- 
tius, lib. iii. c. 4, s. 6. 

For an answer at large to this authority, I shall 
content myself with referring to the written opi- 
nion of Mr. Gore. I am induced to this, because 
in the written opinions of one of the British com- 
missioners, lately filed, that authority, though 



[ 255 ] 

originally relied upon to prove that any person 
found, or being in an enemy's territory, was abso- 
lutely liable to be treated as an enemy, is used 
for a different and a less extensive purpose, meet- 
ing my approbation. 

Upon the wliole I take it to be clear, that, upon 
the footing of residence, George Patterson's pro- 
perty was not liable to condemnation. 

It would not be proper, however, to dismiss the 
question without noticing the particular manner 
in which one of the commissioners, in his written 
opinion, sustains the condemnation of George Pat- 
terson's property. The argument stands thus: — 
All persons who are within the enemy's territory 
are, prima facie, to be considered as enemies and 
liable to hostilities. (Grotius.) George Patter- 
son being at Guadaloupe at the time of the cap- 
ture, of course came within this rule, and to ex- 
tricate him«!!elf from it, it was incumbent on him 
to show — " that he was there acting in a manner 
'' perfectly consistent with the strict duty of a neu- 
" tral. '^I'he burden of the proof was upon him." 
It is then supposed, and attempted to be shown, 
that he has failed in this proof. 

Even if it ha admitted that the above rule is a 
sound one, and I am not disposed to question it, 
the application of it is certainly exceptionable. 
To extricate himself from the operation of such 
a rule, it could only be incumbent on Mr. Patter- 
son to prove himself an American citizen. That 
fact being established, (as it was by all the evi- 
dence on board the brig,) the neutrality of his 



[ 256 ] 

character stood free from the presumption against 
him, arising solely from the place in which he 
happened to be. The burden of the proof would 
then bo transferred from him to the captors. 

By showing that he was a citizen of the United 
States, he showed that he was no enemy to Great 
Britain ; and, if the captors desired to defeat the 
effect of that evidence, it was indispensible for 
tiiem to go further than barely to prove that he 
icias ill an enemy' ii country, wliich in itsel^f was 
not at all inconsistent with the neutral quality at- 
tached to his citizenship of a friendly nation. 
Until they showed that he had done some act by 
which he had forfeited the friendly character, 
which all the ship's papers proved him to possess, 
that friendly character was entitled to protect him. 
They did not prove such an act by merely show- 
ing that he had gone to Guadaloupe a few days 
or weeks before the capture, on a comjnercial er- 
rand, and had, at tlie time of the capture remain- 
ed there tino days after the sailing of the yessel 
of which he was supercargo ; since all this was 
perfectly lawful for him as a neutral to do. They 
did not prove such en act in any way ; neither 
his actual stay in the island, from thfe time of the 
brig's departure, to the time of the capture, (two 
days,) nor the stay he intended to make, as declar- 
ed by one of his letters, (until the brig should re- 
turn with another cargo,) can be said to come up 
to the idea of a permanent residence, let such 
stay be coupled with wliat lawful acts it may, so 
as, upon the footing of inhabitancy, to make him 



[ 257 ] 

an enemy to Great Britain. It cannot be pre- 
tended that, while at Guadaloupe, he did any act 
not admitted to a neutral by the law of nations. 
On the contrary, it may confidently be asserted 
that he did nothing inconsistent with the strict 
duty of a neutral. His object in remaining at 
the island, was manifestly to procure payment of 
what was due to him from the administration ; 
and, while so employed, to make such mercantile 
profit, by"conducting the usual trade of the part- 
nership as might be practicable. That the itsland 
wanted provisions is probable, and that he wish- 
ed to have an opportunity of supplying it, not 
only on account of the price of flour, but also on 
account of the profit to be made by a return car- 
go, is certain ; but it was strictly consistent with 
his duty as a neutral to do so. In short, he was 
neither an enemy by residence, nor by reason of 
any conduct unlawful to a neutral. 

It is supposed that, even admitting the property 
of George Patterson not to have been liable to 
condemnation, there was at least probable cause of 
seizure and detention for the purpose of judicial 
inquiry. 

If this probable canse be referred to any ambi- 
guity as to facts at the time of the capture — I an- 
swer that no such ambiguity existed. But it is 
not 171 this mew that there is believed to have 
been probable cause of seizure. The law arising 
from the facts appearing in the letters of George 
Patterson, is imagined not to have been so clear- 
ly in his favour as to render detention, for the pur- 



r 258 ] 

pose of obtaining judicial opinions upon it, ille- 
gal. But, in my judgment, it was so clearly in his 
favour, that I confess myself astonished that any 
doubt could be entertained about it. 

It is not satisfactory to insist upon the Vice 
Admiralty of Bermudas and the Lords of Appeals 
condemning the property, as sufficient evidence 
of probable cause. The sentence of the Vice 
Admiralty of Bermudas, founded upon a ridicu- 
lous falsehood, abandoned by every body, is no 
evidence of any thing but the folly of the judge 
who j»assed it. The sentence of the Lords is 
that of a tribunal, respectable in the highest de- 
gree for talents, integrity and station ; but even the 
commissioner who recomm<;nds it to us as conclu- 
sive proof of prohab/e cause, confesses that it was an 
erroneous sentence, inasmuch as it condemned the 
property of William Patterson, as well as that of 
George l*atterson. For this sentence, as it stands, 
it is impossible to find or conjecture a reason ; and 
yet we are told that we ought to receive it as irrefra- 
gable proof of probable cause. The sentence of 
the Lords is either erroneous, or it is not. If it is 
not erroneous, we ought to decide in exact con- 
formity with it. If it is erroneous, it cannot, in 
any shape, be an authority for us. We are unani- 
mous, that, as to William Patterson's property, 
it is pahmbly erroneous ; — that no pretext can be 
imairined even to countenance it in respect of his 
property ; — and a majority of the Board are of 
opinion, that it is clearly erroneous in tofo. Af- 
ter this, it is at least novel to rest the proof of 



[ 259 ] 

probable cause upon the authority of that sen- 
tence. The question of probable cause is as 
much a question upon which it is our duty to de- 
cide, according to our own judgments, as the 
question whether the condemnation was rightful ; 
and if the sentence of the Lords is not allowed 
to be sufficient to control our judgments on the 
latter question, I see no reason why it should be 
allowed to control it on the former ; — especially 
when the sentence thus set up as a proper guide 
to decision on the former, is nothing more than 
a confessedly erroneous sentence upon the latter. 
As to the opinions of the cora-nissioners who dif- 
fer from the majority on this subject, if they 
were sufficient evidence of probable cause, it 
would follow that every decision against probable 
cause ought to be unanimous. 

In short, I hold it to be plain that there was not 
the smallest foundation for the seizure in ques- 
tion ; — and that if the captor thought proper to 
make the seizure upon any mistaken idea of the 
law of nations, he did it at his peril ; and that his 
nation, in default of redress against him, is to in- 
demnify the parties injured. And, thinking thus, 
I cannot persuade myself that I am to sacrifice 
the conviction of my own mind, not to the reasons 
of others, but to the acts of others, admitted on 
all hands to be founded on misconception. 



The last question which occurred at the Board 
in this case, respected the rule of compensation 



[ 260 ] 

to be applied to it in relation to the cargo. The 
majority were of opinion that the claimants were 
entitled, not only to the value of their merchan- 
dise, but to the nett profits which would have been 
made of it at ihe port of destination, if the voy- 
age had not been interrupted. This opinion pro- 
ceeded upon the supposition that the voyage was 
wrongfully interrupted — and upon that supposi- 
tion would seem to be free from exception. It 
has been questioned, however ; and I shall, of 
course, assign my reasons for adopting it. 

There can be no doubt that the illegal capture 
and condemnation of this vessel and cargo have 
given to the claimants a title to receive from the 
British government the value of the things of 
which they were deprived ; — but the question is 
whether they have not also a title to receive the 
profits that might and would have arisen from 
them X 

The right of the claimants to the cargo was a 
perfect one ; and for that reason, they are autho- 
rized to demand compensation for its value ; — but 
this right was in no respect better or more per- 
fect than their right to proceed upon the voyage, 
and to make such profit of the goods as the situa- 
tion of the destined market would at the time of 
the vessel's arrival, enabled them under all cir- 
cumstances to make. 

When the claimants show (and a majority of 
the Board have determined that they have shown 
it) that the cargo belonged to them ; — that the 
voyage which the vessel (also the property of one 



[ 261 ] 

of them) had commenced was a lawful one ; — 
that there was no ground upon which she could 
justifiably be seized or detained, they prove a 
complete right to prosecute that voyage, without 
molestation, and to acquire such advantages there- 
from as in the course of trade might fairly be 
calculated on. 

According to a written opinion filed by one of 
the Board on this occasion, no compensation is 
due for the violation of this latter right ; for it 
states " that to reimburse the claimants, the ori- 
" ginal cost of their property, and all the expenses 
" they have actually incurred, together with inte- 
" rest on the whole amount, would be a just and 
" adequate compensation." But what substan- 
tial reason can be assigned, why one of the claim- 
ant's rights shall be selected as a proper object of 
compensation, while another of their rights, equal- 
ly indisputable, and equally violated, shall be left 
without any compensation at all ? 

No compensation for an injury can be just and 
adequate which does not repair that injury ; but 
he who wrongfully deprives me of a lawful profit 
which I am employed in making, cannot be said 
to afford reparation until he has given me an 
equivalent for the advantages of which he has 
deprived me ; to which advantages my right wa3> 
as unquestionable as the right I had in the things 
from which they were to arise. 

Rutherforth (1 Inst. Nat. Law, p. 105, s. 5) lays 
down the rule that " in estimating the damages 
" which any one has sustained, where such things 

34 



[ 262 ] 

" as he has a perfect right to, are unjustly taken 
"from him, or withholden, or intercepted, we 
" are to consider, not only the value of the thing 
" itself, but the value likewise of the fruits or 
"profits that might have arisen from it. He who 
" is the owner of the thing, is likewise the owner 
"of such fruits or profits. So that it is as pro- 
" perly a damage to be deprived of thein as it is 
" to be deprived of the thing itself" " But it is 
" to be considered whether he could have received 
" these profits without any labour or expense ; be- 
" cause if he could not, then in settling the dama- 
" ges for which reparation is to be made, the pro- 
" fits are not to be rated at their full worth ; but 
" an allowance is to be made for the labour or ex- 
" pense of collecting or receiving them ; and when 
" the labour or expense is deducted from their 
" full worth, the remainder is all that he has lost, 
" and, consequently, is all that he has any title to 
" demand." 

" In rating the damages which a man has sus- 
" tained, we are to estimate something more than 
" the present advantage which he has lost : for the 
" hope or expectation of future advantage is worth 
"something: and if such hope or expectation is 
" cut oft' by the injury, the value of it is to be al- 
" lowed him. We must, however, in estimating 
"this hope, be careful not to estimate it as if the 
" advantage were in actual possession. Proper 
" deductions are to be made for the accidents 
" which might have happened to disappoint his 
" expectations. And in proportion as these acci- 



[ 263 ] 

" dents are greater or more in number, or more 
** likely to happen, a greater abatement is to be 
" made in consideration of them, &c." Id. p. 416. 

" Not only the damages which a man sustains 
" from an unlawful act are chargeable to them 
" who do the act, but those damages are like- 
" wise to be made amends for, which are the con- 
" sequence of such act." Id. p. 409. s. 8. 

The foregoing quotations are supported by 
Grotius, (lib. 2, c. 17, s. 4 — 5.) and also by Puf- 
fendorf. It is to be admitted, that in the case 
before the Board, the claimants' prospect of pro- 
fits (provided insurance had not been made upon 
both profits and cargo,) was not entirely certain ; 
for the cargo might have been damaged or lost, 
and, of course, in the language of Rutherforth, 
we should be careful " not to estimate those pro- 
" fits as if they were in actual possession." But 
it is also evident that the profits were just as se- 
cure as the cargo itself ^ and were subject to no 
other risk than the cargo was exposed to. 
With a view to prices^ there was no risk at all, 
since we resort to the prices which are proved to 
have been those at which the cargo might have 
been sold if it had arrived. In that respect we 
have facts by which to regulate our estimate, and 
not possibilities. If then the danger of loss of, 
or injury to, the cargo, was the only circumstance 
which rendered the claimants' profits precarious, 
it is extremely easy to make an allowance for that 
hazard, in the same manner as in ascertaining the 
value of the cargo itself. We have only to make 



[ 264 ] 

a proper deduction for the sea risk— -and for 
this, the rate of insurance upon such a voyage as 
the vessel was engaged in, will furnish us with 
the best possible rule. The rate of insurance is 
the value of the hazard, and it is that criterion 
upon which we may safely rely, since it is that 
value which is uniformly paid and received for 
the sea risk by those, who are able, from their 
pursuits, and induced by their interests, to calcu- 
late it accurately. 

t^ome objections were started at the Board, 
against the ascertainment of the probable profit, 
by reference to the prices current at the port of 
destination. 

It was said to be better to give 16 per centum on 
the invoice price ; and this was alleged to be, 
and is, the rule in the Court of Admiralty, in pro- 
vision cases, under the Orders of April, 1795. But 
it is obvious that this rule is an arbitrary one, sug- 
gested indeed by a good principle, but not acting 
upon it. It supposes (what is true) that a claim- 
ant is entitled to compensation for his profits as 
well as for his capital. And so far it adds weight 
to the foregoing remarks ; but it cannot pretend 
to ascertain what those profits would be. 

Ten per centum may be either more or less than 
a just compensation. It may be a good average 
rule among various claimants ; (though if it is so, 
it can only be by accident ;) but surely it is no 
consolation to a claimant who gets less than is 
due to him, that another with whom he has no 
connection, has got more. Our province is to 



[ 265] 

render justice to each individual complainant. It 
is not sufficient that our awards shall cover the ag- 
gregate losses of all the different parties injured, 
unless we distribute compensation in equitable 
proportions. 

It is supposed that there can be no certainty in 
estimating profits, with a view to the prices cur- 
rent at the port of destination. I am satisfied of 
the contrary. To ascertain the current prices of 
the commodities composing the cargo, at the des- 
tined market, at any given time, is neither impos- 
sible nor difficult. What those commodities 
were, together with their quality, may be shown 
by the ship's papers and other testimony. The 
deduction for risk is known at once by the rate 
of insurance, and the expenses of freight, land- 
ing, storing, &c., and the amount of duties no 
person can be at a loss for.* 

The principal reason assigned for this uncer- 
tainty, is the difficulty of fixing the precise in- 
fluence which the arrival, not only of the vessel 
in question, but of other American vessels de- 
tained by British cruizers, contrary to the law of 
nations, would have had upon the market if they 
had been allowed to proceed upon their voyage. 
My answer to this is, that any influence which can 
be attributed to the arrival of the particular ves- 



*,These observations are confirmed by the experience we have 
had, of the operation of the rule in the several cases to which it 
has been applied, since it was first adopted by the Board. Its 
execution has appeared to be easy, and its result certain. 



[ 266 ] 

sel in question, ought to be attended to, and that 
this is capable of a reasonably accurate calcula- 
tion ; but that the possible effect of the arrival 
of other captured vessels upon the market, is 
manifestly improper for our consideration. 

The claimants had a right to make, and would 
have made, such profits of their voyage as the 
actual (not the possible) state of the intended 
market would afford. The circumstances by 
which that state was produced, (whether the 
wreck of other vessels, bound to the same port, 
or their illegal detention by British cruizers,) 
could neither make a change in their right, nor 
extenuate the violation of it. 

I cannot, for my part, perceive any thing mon- 
strous in this opinion ; but 1 can see much room 
for objection to the opposite doctrine, that, al- 
though profit is the lawful object of a merchant; 
although he has a right to make such profit, as the 
real,notthe hypothetical situation, of the projected 
ma«ket, holds out to him ; yet, that a belligerent, 
unjustly interfering with that right, and wresting 
from him the effect of it, is not bound to grant him 
retribution commensurate with the actual da- 
mage ; because, if it were not for the unlawful con- 
duct of that belligerent towards various other 
neutral merchants, the actual damage might have 
been less. 

If the prices of merchandise at the port of des- 
tination had been inflamed by the act of God, 
(the wreck of many vessels bound to that port,) it 
is not supposed that we ought to consider, in the 



[ 267 ] 

estimate of the neutral's probable profits, the in- 
fluence which the arrival of the vessels so wreck- 
ed might have had upon those prices. In such a 
case it is agreed that a neutral is to be compen- 
sated, (if he is to be allowed any profits at all,) 
with a view to the real state of the market, or, at 
least, that nothing is to be deducted for any 
change which that state might have undergone, 
if these vessels had, instead of being wrecked, 
brought their cargoes to their intended ports. 
And yet one would think that the belligerent 
would be more at liberty to set up the act of God, 
to which he was no party, in extenuation of the 
retribution required of him, than acts of injustice 
theretofore committed by that very belligerent, or 
its commissioned cruizers, towards the fellow citi- 
zens of the claimants. 

It does not appear to be a very satisfactory ar- 
gument, to say that the rule adopted by the Board 
is uncertain, although it acts upon things as they 
are-, because a state of things not existing might 
have produced an incalculable variation ; and the 
argument is more especially unsatisfactory when 
it is considered that this alleged uncertainty, 
which a belligerent is made to urge as the means 
of evading reparation for a wrong to the actual 
extent of the loss resulting from it, has been con- 
fessedly produced by the illegal conduct of that 
belligerent, or those acting under its authority. 
When it is recommended to us to desert the sure 
grounds of facts, to employ ourselves in an im- 
practicable calculation upon possibilities, we 



[ 268 ] 

should have some stronger inducement to do so 
than merely to protect *a belligerent from the ob- 
vious consequences of its own injustice, or that of 
its commissioned subjects. When we are asked 
to reject the fair rule of measuring the compen- 
sation for an injury, by ascertaining the com- 
plainant's right, and the damage really sustained 
by the infringement of it, we ought to have a bet- 
ter reason for compliance, than that the damage 
might have been less if the same wrong-doers had 
not previously committed similar injuries. 

If we are to abandon the criterion which the 
actual prices current offer to us, I do not know a 
substitute so inadmissible as that suggested. It 
rests upon the most exceptionable of all principles, 
that he who does wrong shall be at liberty to 
plead his own illegal conduct on other occasions 
as a partial excuse. 

It is said, indeed, that the British government 
will be injured in the aggregate of compensation 
awarded, if the possible influence of the total of 
illegal captures on the market is excluded from 
consideration. 

Doubtless, if it be true that these captures raised 
the price in the different markets, (which I am not 
convinced of,) and if each claimant is compensa- 
ted with a view to that price, the aggregate amount 
of all the compensations will be more than the 
claimants collectively would have received as pro- 
fits, if every vessel so captured had arrived at her 
place of destination. But we are not rendering 
justice in the aggregate, nor is it possible to do so. 



[ 269 ] 

without producing- particular injustice. Complain- 
ants do not come before us as a body, with one 
case and upon one bottom, but as unconnected 
individuals setting^ up distinct rights, and com- 
plaining of distinct losses. Each complainant's 
case is entitled to be determined according to the 
injury which that complainant has received ; and 
it can be no reason for not indemnifying him to 
the extent of it, that his loss would not have been 
so great, if none others could complain of the 
like violence to their neutral rights. 

If a thousand illegal captures had preceded 
that of the Betsey, and raised the price of the ar- 
ticles with which she was freighted, the only con- 
sequence would be, that the claimants had an un- 
doubted right to avail themselves of that raised 
price ; and Great Britain having no possible right 
to prevent them, but choosing (or at least her 
cruizers choosing) to interfere with their title, 
must make reparation equal to the damage, such 
as it was, not such as it might hate been, under 
circumstances not existing. 

It is immaterial whether the prospect of profit 
was bettered by the same persons that Avron«fful- 
ly prevented it from being realized, or by other 
persons, or by mere accident. It is enough that 
the profit might lawfully be made, that the claim- 
ants were lawfully employed in making it, and 
that the British government (or its cotnmissioned 
captor) unlawfully interposed so as to defeat their 
efforts. The right existed with a view to the pro- 
fits actually attainable, without reference to the 

35 



[ '^/O ] 

circumstance, that made it attainable ; and the 
right being ascertained, the coinpensation is in- 
adequate unless it is co-extensive with it. 

We need not be apprehensive that any injury 
will be done to Great Britain by this mode ; for 
it will not pay to any complainant more than a 
compensation for the actual loas and damage 
sustained by him, as expressly stipulated by the 
treaty. 

It is observed in the written opinion already 
quoted, "that the claimants appear to have for- 
" got that if neutrals are to enjoy the benefits 
" arising from a state of war, they must be content 
" to bear part of its inconveniences ; or, on the 
" other hand, if they claim to be exonerated from 
" all the risks and inconveniences of war, they 
" must agree to forego its advantages. They 
" are not to say, give to my commerce the securi- 
" ty of a state of peace ; but, give me the profits of 
" a state of war. The risk and the profit are the 
" counterpoise to each other." 

This may be admitted, if I understand what it 
means. Every neutral trader does and must stand 
the risk which the law of nations annexes to the 
state of war. A neutral who trades in contraband 
hazards confiscation. A neutral who trades to a 
besieged or blockaded port with notice, runs the 
same hazard. A neutral who carries enemies' 
goods, runs the hazard of search, seizure, deten- 
tion, &c. 

The inconneniences to which the status belli 
subjects neutral commerce, are, that it cannot be 



[ 271 ] 

carried on so freely as in time of peace ; — that a 
neutral nation cannot trade with either of the bel- 
ligerents in certain articles; — or at all to such 
ports of either as are in a state of siege or hhx k- 
ade ; — that it cannot carry the goods of either 
without being subject to search and detention ; — 
and, in short, that, in the prosecution of its trade, 
it must observe an impartial neutrality. 

These are the risks and inconveniences to 
which a neutral must submit, because the law of 
nations imposes them on him. 

If any other risks or inconveniences (such as 
the risk or inconvenience of illegal seizure or con- 
fiscation) are intended by the above cited observa- 
tions, it need only be said that they are not such 
as the law of nations authorizes, however they 
may be arbitrarily imposed by one or all of the 
powers at war. 

Let us now compare the above cited obser- 
vation with the consequences deduced from it. 
" To reimburse the claimants the original cost of 
" their prop fvty, and all the expenses they have 
*' actually incurred, together with interest on the 
'' whole umoutit, would be a just and adequate 
'' compensation" " To add to the original cost 
" of the property a reasonable mercantile profit, 
" such as IS usually made in time of peace, would 
^' amount to a very liberal compensation." 

According to this opinion, then, taken altogeth- 
er, the neutral shall incur all the risks and incon- 
veniences of the status belli, and yet shall have 
either no profits at all, or only the peace profits. 



[ 272 ] 

The law of nations imposes restrictions upon 
neutral commerce during war which the bellige- 
rents may and do enforce. 

If the neutral attempts to carry on a trade which 
the state of war renders unlawful to him, his pro- 
perty, says the law of nations, shall be confis- 
cated. Here (as in many other respects) the 
inconveniences of the state of war operate up- 
on him. But again, says the above opinion, if 
he is carrying on a lawful trade, and his property 
is seized and confiscated by one of the powers at 
war upon some illegal pretext, he is to receive as 
a compensation, either no more than the invoice 
price of his goods, or that price and the peace 
profit. 

Where then are the war profits, to be set against 
the war inconveniences ? You enforce against the 
neutral the inconveniences and risks to which he 
is liable, and yet you do not permit him, in cases 
where his conduct is unexceptionable, to make or 
enjoy the profits which it is admitted are and 
ought to be their counterpoise. 

If in one instance a lawful neutral trade can be 
interrupted by a belligerent, on the terms of pay- 
ing to the party aggrieved only the first cost of his 
merchandise, or that and the peace profit, it is evi- 
dent that this can be done in every instance. Who 
does not see that, if this doctrine be true, a state 
of war burdens neutral commerce with the re- 
straints and disadvantages lawfully incident to that 
gtate ; — and yet that a neutral can, in no circum- 
stances, be entitled to the war profits, or, indeed, 



[ 273 ] 

any profits at all as a counterpoise to them, if 
eitiier of the belligerents has the power and in- 
clination to seize npon his property? 

What becomes of the admission that the war 
profits are the neutral's compensation for the in- 
convenience to which the law of nations subjects 
the commerce of his nation, if it is maintained 
that the war profits are rightfully at the mercy 
of ^^uch of the belligerents as shall be strong 
enough lo defeat them I 

If I were to make the claimants speak upon 
this occasion, I would make them say, " the trade 
of our nation is by the law of nations subject to 
certain restrictions resulting from the state of war 
in Europe ; in consideration of which, such of 
our citizens as do not violate these restrictions and 
conform themselves to their neutral duties, are en- 
titled to the war profits. We have not violated 
these restrictions ; we have conformed ourselves 
to these duties ; and were, of course, entitled to 
make the war profits. You have prevented us 
from obtaining them, by an illegal seizure and 
confiscation of our vessel and cargo ; and we 
now claim retribution equal to the injury." What 
could be replied to this ? 

We are told that the invoice price is the mea- 
sure of compensation usually adopted by all bel- 
ligerent nations, and accepted by all neutral 
nations. 

I understand that this is not, even at present, the 
case in this country. Where the property has 



[ 274 ] 

been sold, the nett proceeds are given in ordinary 
cases, and in the provision cases the invoice price 
and 10 per centum profit was given. Mr. Gore has 
referred to an adjudged case, to prove that in Eng- 
land the very rule adopted by the Board has 
been heretofore in practice. But it is not likely 
that there is to be found any one rule which has 
been received and adhered to in the Courts of 
Admiralty of all countries, or even of many 
countries. 

It is also said " That the trade in which the ves- 
" sel was engaged was barely not unlawful :" and 
this is suggested as proper to influence the quan- 
tum of compensation. But if the trade was not 
unlawful, it was surely as lawful as any trade can 
be. 1 know of no mode by which the absolute 
legality of a trade can be proved, in reference to 
the law of nations, but by showing that this law 
does not prohibit it. Such, it is admitted, was the 
trade in which the Betsey was employed, and I 
cannot conceive how any trade can be said to be 
lawful in any other sense. If the trade was law- 
ful at all it was completely so ; and, of course, 
was entitled to security as far as any trade could 
be so entitled. There is no medium between le- 
gality and illegality. It is true, there are certain 
illegal acts more injurious and more wicked than 
others, and, consequently, requirmg and justify- 
ing heavier punishment ; — but it is incomprehen- 
sible how an act confessedly legal, can ever be the 



[ 275 ] 

object of punish ment upon a loose idea that it was 
barely not unlawful.^ 

It is said further that the treaty intended to sub- 
stitute a new mode, not a new measure of com- 
pensation. Upon the question of jurisdiction, I 
have understood it to be urged that a newmeasnre 
of compensation was almost the only object of the 
treaty. We have been supposed to have the pow- 
er of relieving, in cases where the [^ords have 
given only the nett proceeds, in consequence of 
the rule to that effect in the Prize Act, and in cases 
of seizure under the Orders of Councd where the 
Lords are bound to refuse costs and damages 
against the captor. But it is in vain that we have 
power to entertain these cases, if we are not to 
introduce any new measure of compensation, how- 
ever justice may require it. If we are to adopt 
the measure of redress applied by the Lords, our 
jurisdiction in such cases is a ridiculous nonen- 
tity. But be this as it may, the words *' adequate 
compensation," and " full and complete compen- 
sation," to be found in the 7th article of the trea- 
ty, do not warrant the above interpretation of it. 



I have thus stated the principal reasons which 
have governed my judgment in the case of the 
Betsey. I have not been able to avoid the dis- 
cussion of such objections as have been insisted 

* Vid. l«t Burlemaqui, ll6. 



[ 276 ] 

on affainst the opinions I have delivered on the 
several points that have occurred in tlie progress 
of this case. 

For such of the commissioners as differ from 
me I feel the best founded respect ; but I could 
not explicitly detail the grounds of my decisions 
on this occasion, without noticing topics thaj were 
believed to militate against them, and with that 
impression have been put upon our files. 

London, \st July, 1797. 

WM. PINKNEY. 



THE NEPTUNE. 

A provision case. 

Mr. Pinkney. — This case has gone to the mer- 
chants upon the opinion of a bare majority, con- 
sisting of the two American Commissioners and 
the fifth Commissioner ; — and of course, I think 
myself, as one of that majority, strongly called 
upon to state and file the reasons which have 
governed my judgment. 

In making this statement T shall not (as it has 
been supposed I ought to do) confine myself to 
what is called the question of jurisdiction- The 
motives which influence me to record the grounds 
of my decision, arise out of a sense of the deli- 
cacy of my situation; and thes«' motives apply 
as forcibly to a decision upon the merits, as to a 
decision upon the import of the words of the 
treaty. 



[ 277 ] 

In the cou»*se of the following detail it will ap- 
pear that I have sometimes noticed tiie topics in- 
sisted on by others, as militating against the ile- 
termination of the Board ; and it is proper for me 
to obs'Tve that I have not studied to avoid this. 

My sole view is the vindication of my own 
opinion ; but this requires the discussion of ob- 
jections to it. 

If the manner in which this is done shall be 
temperate and decorous, (and I hope Tarn inca- 
pable of adopting any other manner,) the thing 
itself can neither be otfensive nor reprehensibie. 
I may, indeed, misrepresent what p«'Ssib!y I may 
not have understood ; but it will be easy for those 
whose ideas I have misconceived, to counteract the 
effect of accidental misrepresentation, by putting 
on record their real thoughts. 

The general nature of the case is briefly as 
follows : 

In April 1795, (between the time of the signa- 
ture of the treaty and the time of exchanging the 
ratifications) his Britannic Majesty in council is- 
sued an instruction to the commanders of his 
ships of war and privateers, fee, by which they 
were directed to stop and detain all vessels loaded 
wholly or in part with corn, flour, meal, and other 
articles of provisions therein mentioned, and 
bound to any port in France, &c., and to send 
them to such ports as should be most conveni'-nt, 
in order that such corn, &c., miglit be purchased 
in behalf of his Majesty's government. 

36 



[ 278 ] 

I state the tenor of the instruction, not from 
any authentic copy, for that is not to be obtain- 
ed, (the instruction never having been published, 
as is customary,) but from a collation of the evi- 
dence of its purport with the first additional in- 
structions of the 8th of June, 1793. The sub- 
stance is sufl[iciently established by proof, and I 
have merely borrowed, from the instruction of 
1793, the language in which it was probably 
clothed. 

In virtue of this instruction, the Neptune, be- 
longing to American citizens, laden in part with 
rice, and bound on a voyage from Charleston to 
Bordeaux, in France, was stopped by one of his 
Majesty's ships of war, and finally brought into 
the port of London, where proceedings were com- 
menced against her in the High Court of Ad- 
miralty. 

The Court of Admiralty ordered the cargo to 
be sold to his Majesty's government, and the pro- 
ceeds* to be brought into court for the benefit of 
those who should be entitled ; and upon a claim be- 
ing made in the usual form, in behalf of the owners, 
restitution of the cargo or the value was decreed. 
The ship was restored with freight, demurrage, 
and expenses. 

The ascertainment of the value of the said car- 
go, and the account for freight, demurrage, and 
expenses, were referred to the registrar and mer- 
chants. * 

* The proceeds never were brought into court. 



[ 279 ] 

The registrar and merchants, in ascertaining 
the value of the cargo, allowed much less tlian 
the claimants demanded, and much less than it 
would have produced at Bordeaux, or even in 
London. The rule by which they made this as-' 
certain ment was the invoice price, and a mercan- 
tile profit of 10 per centum, which they alleged 
they had not the power, of departing from, that 
rule being prescribed to them by the British go- 
vernment in all cases under those orders. 

Mullet «fe Co., the agents of the claimants, up- 
on the arrival of the ship at Portsmouth, applied 
on their behalf to the Lords of the Treasury, and 
also to Claude fj^cott, Esquire, the agent appoint- 
ed by the British government for the manage- 
ment of cargoes of this description, offering to 
indemnify the Biiti>sh government against all 
claims and demands on account of the capture, 
and also to give security to sell the cargo in Eng- 
land, provided it was given up to them to be 
sold on account of the owners. His offer waa 
refused. 

The claimants did not except to the reports of 
the registrar and merchants, but, being told by 
the officers of the government that payment of 
what was so reported could only be obtained by 
joining in a prayer for their confirmation, they 
did so accordingly, (protesting against their er- 
rors and justice,) and received from his Majesty's 
government the amount of these reports. 

The memorial is for further compensation, 
over and above the compensation already received 



[ 280 ] 

from the British government under the above 
reports. 

Upon the coming in of the memorial, the follow- 
ing jircliminary question was started : 

Whether it sufficiently appears that the claim- 
ants could not obtain, have, and receive, hy the or- 
dinary course of judicial proceedings, adequate 
coinpeusatiim for the loss and damage they are 
supposed to have sustained by the seizure com- 
plained of! 

Upon ihis question, I have given my opinion in 
the ariirmative, and the following are my reasons : 

There are only two parties against whom com- 
plete judicial redress is alleged to have been prac- 
ticaiile, VIZ. the captor and the British govern- 
ment ; and if it is clear that it was not attainable 
against either of these, it follows that it was not 
attainable at all. 

1st. 1 am satisfied that it was unattainable 
asainst the British (rovernment in such manner 
as is pointed out by the treaty. 

One would think that this position need only 
be stated to be acceded to. It has been combat- 
ed, however, and therefore requires to be remark- 
ed upon. 

It will not be pretended that the sentence of Sir 
James Marriot, or of the Lords of Appeal, would, 
as against the British nation, have carried along 
with it any further efficacy than the government 
of the country chose to give to it. 

He who should seek the performance of such a 
sentence, must address himself to the discretion 



[ 281 ] 

of ihp government, and not to the power a of any 
ordinary judicature known to the laws or con- 
stitution. 

h lias been admitted (and very properly) by 
one of the Board, in a written opinion filed on a 
former occasion, that the treaty extends to cases 
" to which circumstances belonged that rendered 
the pow^Tft of the Supreme Court, actins; accord- 
ing to Us ordinary rules, incompetent to afford 
complete compensation.^^ I do not think thnt this 
admission is co-extensive with ihe actual scope of 
the treaty ; but, as far as it goes, no person will 
question the propriety of it ; and surely no case can 
be imagined more unequivocally within it, than 
the case I am now considering, in the view in 
which it is now present(;d to us. 

The powers t)f the Lords (as well as those of 
the High Court of Admiralty) were, and are, no- 
toriously incompetent to afford any compensation 
at all against the British government in the sense 
the treaty contemplates. 

They may be competent to pronounce an opi- 
nion in judicial form, that compensation ought to 
be afforded, but the opinion when pronounced 
would be intrinsically inefficient and powerless. 

It is said, indeed, that the government would be 
bound in good faith to comply with any sentence 
the Lords or the High Court of Admiralty might 
pass upon the case ; and I am not disposed to 
doubt that it would have done so. But the 
treaty does not call upon the claimants to apply 
to rhi^ (rood faith of e'wher of the contracting par- 
ties, except through our instrumentality. 



[ 282 ] 

The claimants, when they come to us, are re- 
quired to show that they could not obtain, have, 
and receive adequate compensation hy the ordi- 
nary course oj judicial proceedings. On this oc- 
casion (unless the captor was liable) they show, 
beyond all controversy, that this was impractica- 
ble, by proving that the only party against whom 
redress was demandable, could never be affected 
by the ordinary course of such proceedings. 

They show that, although judicial proceedings, 
as against that party, might possibly have reach- 
ed a certain point, i. e. the formal rendition of a 
jvdi^ment, they could never, in the nature of things, 
reach that point expressly designated by the trea- 
ty, i. e. the actual receipt of co7nplete compen- 
sation. They show that, even if the Lords, or 
Sir James Marriot, had adjudged in their favour 
to the utmost extent of their present demand, all 
beyond that judgment must of necessity have 
been a perfectly discretionary act on the part of 
the British government, with which the ordinary 
course of judicial proceedings could have no 
connection, and which they could not in any 
shape have accomplished. It is not to such nerve- 
less judgments that the treaty can be supposed to 
refer the claimants. 

Thus, in the case of the insolvency of the cap- 
tor and his securities, the Court of Appeals may 
pronounce a sentence ; but as it cannot enforce 
that sentence by reason of the insolvency of those 
upon whom only it can operate, we are all agreed 
fhat the claimant is entitled to come here for re- 



[ 283 ] 

dress. The present case is infinitely stronger 
than that of an insolvent captor, &c. ; for there 
the incompetency of judicial authority results 
from a fact collateral to it, whereas here it is ra- 
dical and inherent. 

The Lords never had, and never can have, even 
the shadow of power to execute a decree against 
the government of Great Britain. No proof, no 
experiment, can be necessary to establish a truth 
so palpable. 

Will any one maintain that the compensation, 
already paid on this occasion, was obtained, or 
could have been obtained against the British go- 
vernment, by the ordinary course of judicial pro- 
ceedings ? On the contrary, it is certain that the 
payment was merely voluntary, and that, although 
consequent upon, it was not, and could not be, 
procured by any judicial proceedings whatsoever. 

It is in proof that, notwithstanding the decree, 
payment was refused, unless the claimants would 
join in a prayer for the confirmation of the report 
of the registrar and merchants — and it was in 
virtue of their constrained consent to do so, that 
they have received what has been paid to them. 
If the refusal to pay had been perrmptory in- 
stead of conditional, by what form of judicial 
proceedings could the claimants have compelled 
compliance against the sovereignty of the British 
nation ? 

In short, it is an incomprehensible solecism 
to talk of obtaining, having, and receiving ade- 
quate compensation against the government of 



[ 284 ] 

this country, by the ordinary course of judicial 
proceedings. 'I'he moment it sliould be granted 
that redress was only practicable against the go- 
vernment, it would follow, as a self-evident con- 
clusion, that it was not judicially practicable at all 
to the extent intended by those who appointed us. 

A decree for cotnpensation is not compensa- 
tion in f\ict, — and however the former miglit have 
been obtained against the government in the or- 
dinary course of judicial proceedings, it is cer- 
tain that the latter (of which only the treaty 
speaks) was not so attainable. 

If this part of the question be plain upon the 
letter of the treaty, it is (if possible) yet plainer 
upon its spirit. 

With what rational object can it be conceived 
that the treaty should compel the neutral claimants 
to apply to the Lords of Appeal for retribution 
against the government of the country, before their 
com['laints shall be laid before us? In ordinary 
cases between claimant and captor, there is the 
best reason for such an application. The national 
responsibility in such cases would be lessened in 
proportion to the quantum of compensation judi- 
cially received from the individual wrong-doer; 
and if the compensation so procured from the in- 
dividual should be equal to the injury, the nation- 
al responsibility upon which we are appointed to 
act would be at an end. 

But in a case where the government, and the 
government only, is answerable to the claimnnt, 
there is no inducement to prescribe to him the 



[ 285 ] 

circuity and expense of exceptions and appeals. 
The national liability being fixed, no judicial pro- 
ceedings can diminish it. They may, indeed, en- 
large, and doubtless would uniformly have that 
effect, inasmuch as the claimant could not except 
and appeal without incurring considerable costs, 
which either the Lords of Appeal or this Board 
would be bound to reimburse against the British 
government. 

By sending the claimants, therefore, in a case of 
this kind, to the Lords, the treaty would have pre- 
judiced one of the contracting parties and the 
claimants, without benefiting either ; and it is, of 
course, fair to presume that it had no such inten- 
tion. If the words of the treaty necessarily pur- 
ported such an intention, we should have then only 
to obey, whatever our opinion might be of its pro- 
priety ; but 1 have already shown that the words 
are so far from conveying any such meaning, that 
their natural interpretation leads to its reverse. 

2d. I am also satisfied that judicial redress was 
unattainable against the captor. 

As the seizure was made under an order of 
council, the captor could not be made to restore 
more than the property seized or its value. He 
was not liable for costs and damages, as the Lords 
of Appeal have uniformly determined, on analo- 
gous occasions. 

Immediately upon the case getting into a train 
of judicial inquiry, the High Court of Admiralty 
ordered the cargo to be sold to his Majesty's go- 

37 



[ 28G 1 

verniiient, and the proceeds to be brought into 
court for the benefit of those who should appear 
to be entitled to them. The sale was made, (though 
upon no specific terms,) but the proceeds were 
not, and indeed could not be brought into court. 
The consequence was, that the property, for the 
restitution of which the captor might originally 
have been answerable, was, hy the act of the court 
in plain pursuance of the order of council y 
placed out of his reach, and converted into a mere 
debt due from the British government to whomso- 
ever should a^ppear to he entitled to it. 

I take it to follow undeniably, that the captor 
was no longer liable for the restitution of the 
property itself since no court can be supposed 
capable of enforcing against a party that which it 
has, hy its oicn decree, disabled him from per- 
forming. 

It is only to be inquired then, whether he re- 
mained answerable to the claimants for the value 
of the property ? 

That value was the proceeds, and in ordinary 
cases he would doubtless have been answerable 
to that extent, and to that only. But in ordina- 
ry cases, where a sale is directed, the court does 
not prescribe to whom it shall be made ; and 
such a sale always creates somewhere a legal re- 
sponsibility for the purchase money, of which the 
captor may avail himself, so as to get in the pro- 
ceeds to meet the court's decree. 

In the present case the court departed from the 
ordinary mode, and directed the sale to be made 



[ 287 ] 

to his Majesty's government, (evidently in execu- 
tion of the order of council,) over wliich neither 
the captor nor the Court of Admiralty, nor any 
other court, had or can have the least efficient 
control. 

Upon the completion of the sale, then, the pro- 
perty was put beyond the povt^er of the captor, 
and of judicial process ; and as the proceeds were 
not paid into court, they too were equally beyond 
the arm of justice, exerting itself in the ordinary 
course of judicial proceedings. Nothing remain- 
ed but an engagement on the part of the govern- 
ment to pay the proceeds to whomsoever should 
be entitled ; but upon that engagement no judi- 
cial proceedings were competent to act. Its 
performance depended, not on the agency of ju- 
dicial authority, but upon the pure discretion of 
the state. 

In this state of things it is impossible to ima- 
gine that any decree could be procured, or if pro- 
cured, executed against the captor, he being de- 
prived of the goods with a view" to which his lia- 
bility commenced, and nothing being substitut- 
ed in their place but the honorary promise of a 
sovereign power. 

Accordingly we find, that in fact the Court of 
Admiralty has not made any decree against him, 
but that the decree actually made by it is wholly 
against the government. So far has it been from 
attempting to impose any burden upon the cap- 
tor, in favour of the claimants, that it orders the 



[ 288 ] 

captor's as well as the claimants' costs to be paid 
by 1 he state. It could decree in no other form, 
without vioLiting its own established rules, and 
subverting every principle of law and equity. If 
it had decreed the captor to pay costs, damages, 
and expenses, it would have intrenched upon the 
setth^d rule, that the Orders of Council justified 
him ; and if it had decreed him to restore the 
cargo, or to pay the value, or the proceeds, (such 
proceeds not being brought into court,) it would 
have made him responsible for unavoidable obe- 
dience to its own orders, (founded upon the Or- 
der of Council) by which he was compelled to 
part from the cargo, without receiving or having 
the means of enforcing payment of the value or 
the proceeds. 

In no stage of the cause was it possible for the 
captor or the court to get possession of the pro- 
ceeds by the instrumentality of any judiciary in- 
terference ; and if, under these circumstances, a 
decree should pass against him to the extent of 
these proceeds, it is manifest that it would have 
been founded in gross iniquity, since it would 
have been an attempt to coerce, or rather to in- 
fluence the sovereignty of the nation, (the only 
party really bound to compensate the claim- 
ant,) by penallies upon an individual admitted by 
the tribunal inflicting them to be entirely in- 
nocent. 

I will not presume, nor can I believe, that any 
Court of Judicature would proceed to an end, 
however just, by means so flagrantly oppressive. 



[ 289 ] 

It is no answer at all to say that the honour of 
the British government would not have permitted 
it to abandon the captor to the operation of the 
Ad.niralty sentence, without furnishing him with 
4h«> means of complying with it. I do not ques- 
tion the national honour, for no one believes more 
highly of it than I do. But I may, notwithstand- 
ing, be permitted to suggest that a dependence 
upon it might have failed, and that whether it 
should fail or not, the result must have sprung 
from the mere pleasure of the government, and 
not from the operative power of the law. 

Even if the Court of Admiralty or the Lords 
had (as I am thoroughly persuaded they would 
not) pronounced against the captor an absolute 
sentence to pay the proceeds, in a hope or upon a 
reliance that it would be discharged by the go- 
vernment before process was taken out upon it, 
yet if such hope or reliance should be disappointed, 
they could not have executed the sentence against 
him, without bringing upon the administration of 
Admiralty justice imputations, which I am confi- 
dent it will never deserve. 

So that, in any view in which this subject can 
be considered, the ('ourt of Admiralty or the 
Lords could only proceed upon the good faith 
of the British government ; and the whole ques- 
tion, at least, revolves itself into this : — " Is it 
a sufficient reason, under the 7th article of the 
tri^aty, for dismissing the claimants' case, that 
they did not persevere in a dilatory, expensive, 
and ruinous procedure, which, although obviously 



[ 290 ] 

incompetent to arrive, hy its own ejficacy, at the 
point relied upon by tlie treaty, and aflbrding no 
certain prospect that it could even aid them in 
reaching that point at all, might possibly have 
induced the British government voluntarily to do 
them justice ?'' To this question there can be 
but one answer. 

Before I dismiss this part of the subject, (upon 
which, perhaps, I have already dwelled too long,) 
1 will subjoin some further observations to prove 
that the captor was not, on this occasion, in 
any degree liable to the claimants' remedy. 

The Orders of Council, in virtue of which 
American vessels bound from the French West 
Indies to the United States, with the produce of 
those islands, were captured and taken in for ad- 
judication, have (although revoked) been held to 
deprive the Lords of the power of adjudging 
against the captor the costs and damages accruing 
from the seizure. It is agreed on all hands, how- 
ever, that there have been cases of capture under 
these orders, in which the neutral claimants were 
entitled to have costs and damages, if not against 
the captors, at least against the government of 
this country. We have been told that to afford 
compensation for these costs and damages was 
one of the principal objects, and, indeed, almost 
the only object of the 7th article of the treaty, 
and on one occasion we have unanimously grant- 
ed compensation for them. 

But if it be true that in the case of the Nep- 
tune, the Lords of Appeal could have proceeded 



[ 291 ] 

against the British Government, through the 
sides of the captor (as has been contended) for 
the proceeds of her cargo, I cannot discover why 
they could not also have proceeded against the 
government in the same way, for the costs and 
damages above mentioned, but for which it seems 
we only have authority to grant redress. 

The same sense of honour would, it is to be 
presumed, have influenced the government to in- 
terpose itself between the claimant and the cap- 
tor, by paying out of its treasury the amount of 
the costs and damages decreed ; and yet it never 
occurred to the Lords, that, upon the probability 
of that interference, they were justified in decree- 
ing them against him. 

Rather than accomplish, in this mode, the in- 
demnification of the claimants, they have said, 
that, how^ever well grounded his claim, he should 
have no costs and damages at all. 

The force of this analogy will not be weaken- 
ed by any suggestion, that the instances placed in 
comparison are different in their circumstances. 

In both instances the captor's situation is sub- 
stantially the same, so long as the government 
has not supplied him with the means of payment. 
He is equally innocent in both, and has in both 
precisely the same excuse, viz. obedience to the 
orders of competent superiors. 

The orders of April 1795, under which the 
Neptune was seized, directed the sale of the car- 
goes to his Majesty's government, as well as the 
seizure of them. 



[ 292 J 

If the captor was not answerable for the con- 
sequences of one part of this order, (and we know 
that he was not,) why was he answerable for the 
consequences of the other, and if, in truth, he 
was not (out of his own funds) liable for the con- 
sequences of either, why is a decree or proc ss 
against him personally to be used as the instru- 
ment of giving effect to the responsibility of the 
government in one case more than the other 1 
Thcvse are distinctions which 1 confess myself un- 
able to make,— and I have not found others who 
differ from me disposed to assist me in making 
them. 

The nature of this order of council, and the 
proceedings upon it, show decidedly that the go- 
vernment alone was intended to be liable to the 
claimants. 

It was an order from which the captor was to 
derive no benefit, and in the execution of which 
he was to acquire no interest that should create 
any correspondent liability, unless upon grounds 
entirely distinct from and out of it. 

In the body of the order, it was declared that 
the cargoes were to be purchased by the state ; 
and, accordingly, the Court of Admiralty always 
so decreed, except where government, in one or 
more instances, late in the year, gave permission 
to the claimants to sell to others. 

The government, after becoming the purchaser, 
(not for any entire sum or at specific prices, as in 
common cases.) kept the supposed purchase-mo- 
ney in its own hands, and never placed it under 



[ 293 ] 

the control of the court. Of the cargoes it took 
possession immediately upon their coming into 
port, without waiting for the formality of Sir 
James Marriot's orders to sell. 

The agency and influence of the government 
is visible and prominent in every step of the trans- 
action. The sale was the obvious effect of its 
will. Even in the ascertainment of the compen- 
sation to be paid to the neutral owners, (although 
it is pretended that it was a proceeding in the or- 
dinary course of justice,) the measure of redress 
was dictated by the state, and, as prescribed, 
applied. 

In short, the whole affair was so plainly, and 
indeed confessedly, a mere political arrangement 
for the compulsory purchase by the British go- 
verment of articles of provision from neutrals, 
that it seems wonderful how it can be imagined 
that a case, arising under it, was a case between 
captor and claimant in which the claimant was to 
look to the captor for the promised retribution. 

Upon such a subject there needs no laboured 
argument. 

I have thus stated the principal reasons upon 
which I have formed the opinion, " that it does 
" sufficiently appear on this occasion, that the 
" claimants could not, by the ordinary course of 
"judicial proceedings, obtain, have, and receive 
" adequate compensation for the loss and damage 
" they are supposed to have suFitained by the 
" seizure complained of." 

38 



[ 294 ] 

The jurisdiction of the Board being establish- 
ed, the rule by which compensation for the cargo 
should be estimated, came next into discussion. 

The majority of the Board were for applying 
the rule adopted in the case of the Betsey, Fur- 
long, i. e. " the nett value of the cargo at its port 
of destination, at such time as the vessel would 
probably have arrived there." 

One of the British commissioners objected to 
the application of that rule, not only upon the 
general grounds mentioned in his written opinion 
in the case of the Betsey, Furlong, which I have 
elsewhere fully considered, but upon grounds pe- 
culiar to cases arising under the provision order 
of 1795. 

The objections peculiar to this class of cases 
were chiefly founded upon the following positions : 

1st. That the order of council was made when 
there was a prospect of reducing or bringing the 
enemy to terms by famine ; and that, in such a 
state of things, provisions bound to the ports of 
the enemy became so far contraband as to justi- 
fy Great Britain in seizing them upon the terms 
of paying therefor the invoice price, with a rea- 
sonable mercantile profit thereon, together with 
freight, demurrage, S^e. 

2d. That the order of council was justified by 
necessity — the British nation being at that time 
threatened with a scarcity of those articles di- 
rected to be seized. 

The first of these positions has been rested 
not only upon the general law of nations, but up- 



[ 295 ] 

on the 18(h .article of the treaty between Great 
Britain and America. 

The evidence of this supposed law of nations 
is principally the following loose passage of Vat- 
tel : " Commodities particularly used in war, and 
the importation of which to an enemy is prohibit- 
ed, are called contraband goods. Such are mili- 
tary and naval stores, timber, horses, and even 
provisions in certain junctures where there arc 
hopes of reducing theencfny hy famine.'''' (Vattel, 
b. 3, c. 7,s. 112.) 

It might be sufficient to say, in answer to this 
authority, that it is at least equivocal and indefi- 
nite, as it does not designate what the junctures 
are in which it shall be allowable to hold " that 
there are hopes of reducing the enemy by famine," 
that it is entirely consistent with it, to affirm that 
these hopes must be built upon an obvious and 
palpable chance of effiicting the enemy's reduc- 
tion by this obnoxious mode of warfare, and that 
no such chance is by the law of nations admitted 
to exist except in certain defined cases, such as the 
actual siege, blockade, or investment of particu- 
lar places. This answer, satisfactory enough in 
itself, would be rendered still more so by com- 
paring what is contained in the foregoing quota- 
tion with the more precise opinions of other re- 
spectable writers on the law of nations, by which 
we might be enabled to discover that which Vat- 
tel does not in this quotation profess to explain, 
the combination of circumstances to which his 
principle is applicable, or intended by him to be 
applied. 



[ 296 ] 

But there is no necessity for relying wholly on 
this answer, since Vattel will himself furnish us 
with a pretty accurate commentary on the vague 
text he has given us. 

The only instance put by this writer, which 
comes within the range of his general principle, is 
that which he, as well as Grotius, has taken from 
Plutarch. Demetrius (as Grotius expresses it) 
held Attica by the sword. He had taken the adjoin- 
ing towns of Eleusine and Rhamnus, designing a 
famine in Athens, and had almost accomplished 
his design, when a vessel laden with provisions 
attempted to relieve the city. Vattel speaks of 
this as of a case in which the provisions were 
contraband (Sect. 117;) and although he does 
not make use of this example for the declared 
purpose of rendering more specific the passage 
above cited, yet, as he mentions none other to 
which it can relate, it is strong evidence to show 
that he did not mean to carry the doctrine of spe- 
cial contraband, farther than the example will 
warrant. 

It is also to be observed that in Sect. 113. he 
states expressly that all contraband goods, (in- 
cluding of course those becoming so by reason of 
the junctures of which he had been speaking at 
the end of Sect. 1 12,) are to be confiscated. But 
nobody pretends (and it would be monstrous to 
pretend) that Great Britain could rightfully have 
confiscated the cargoes taken under the order of 
1795, and yet if the seizures made under that or- 
der fell within Valtel's opinion, the confiscation 



[ 297 ] 

of the cargoes seized would have been justifia- 
ble according to the same opinion. 

It has long been settled that all contraband 
goods are subject to forfeiture by the law of na- 
tions, whether they are so in their own nature, or 
become so by existing circumstances ; and even 
in early times, when this rule was not so well es- 
tablished, we find that those nations, who sought 
an exemption from forfeiture, never claimed it upon 
grounds peculiar to any description of contraband, 
but upon general reasons, embracing all cases of 
contraband whatsoever. 

As it is admitted, then, not only by the order 
Itself, but by the agent of the crown, and every 
member of this Board, that the cargoes in ques- 
tion were not subject to forfeiture, as contraband, 
it is manifest that the juncture which gave birth 
to that order is admitted not to have been such 
an one as Vattel had in view, or in other words, 
that the cargoes were not become contraband at 
all within the true meaning of his principle, or 
within any principle known to the general law of 
nations. 

In confirmation of the above observations upon 
Vattel, it may not be unimportant to add that 
Zouch,* who speaks upon this subject almost in 
the very words used by Vattel in the foregoing 
quotation, illustrates and fixes the extent of his 
general doctrine by the case of the investment of 
Athens by Demetrius. 



* Bynkershoek too, who lays down his general principle even 
in larger terms than Vattel, evidently confines its application to 
cases of siege and blockade. 



[ 298 ] 

I have understood it to be supposed that Gro- 
tius also countenances the position 1 am now ar- 
guing against. 

He divides goods into three classes, the first of 
which he declares to be plainly contraband, the 
second plainly not so, and as to the third, he says ; 
" In tertio illo genere usus ancipitis distinguendus 
" erit belli status : nam si tueri me fion possum 
" nisi que mittitntur inter cipiam ntcessitas, ut 
" alibi exposuimus* jusdabit, sed sub onere resti- 
" tutionis, nisi causa alia accedat." (lib. 3. c. 1. s. 
5.) This **causa alia" is afterwards explained by an 
example, "ut si oppidum obsessum tenebam si por- 
" tus clausos et jam deditio aut pax expectabatur." 

This opinion of Grotius as to the third class of 
goods, does not appear to me to proceed at all 
upon the notion of contraband, but simply upon 
that of a pure necessity on the part of the cap- 
turing belligerent. He does not consider the 
right of seizure as a means of effecting the re- 
duction of the enemy, hut as the indispensible 
means of our own defence. 

He does not authorize the seizure upon any 
supposed illegal conduct in the neutral, in at- 
tempting to carry articles of the 3d class, to the 
ports of the enemy, or upon any supposed cha- 
racter of contraband attached to those articles. 
He authorizes it upon the footing of that sort of 
absolute necessity on the part of the belligerent, 
making the seizure, which, by the law of nations, 
suspends in his favour, sub modo, the rights of 
others. 

* Lib. 2. c. 2. s. 6. &c. 



[ 299 ] 
This necessity he explains at large, in lib. 2. 
c. 2 s. 6. &c., and in the above recited passage 
he refers expressly to that explanation. 

1. "Videamus porro ecquod jus communiter 
" hominibus competat in eas res, quse jam proprise 
" aliquorum factse sunt, quod qu^eri mirum forte 
" aliquis putet, cum proprietas videatur ahsorpsisse 
" jus illud omne, quod ex rerum communi statu 
" nascebatur. Sed non ita est. Spectandum enim 
" est, quae mens eorum fuerit qui primi dominia 
" singularia introduxerunt : quae credenda est talis 
" fuisse ut quam minimum ab sequitate naturali 
" recesserit. Nam si scripts? etiam leges in eum 
" sensum trahendse sunt quatenus fieri potest, 
" multo magis mores qui scriptorurn vinculis non 
" tenentur." 

2. " Hinc prime sequitur, in gravissima ne- 
"cessitate reviviscere jus illud pristinum rebus 
" utendi, tanquam si communes mansissent : quia 
*' in omnibus legibus humanis, ac proinde et in 
" lege dominii, summa ilia necessitas videtur ox- 
"cepta." 3. "Hinc illud, ut in navigatione si 
" quando defecerint cibaria, quod quisque habet 
" in commune conferri debeat. Sic et defendendi 
" mei causa vicini sedificium orto incendio dis- 
" sipare possum : et funes aut retia discindere 
" in quae navis mea impulsa est, si aliter explicari 
"■ nequit. Quae omnia lege civili non introduc- 
" ta, sed exposita sunt." Lib. 2, c. 2, s. 6. 

In sections 7, 8 and 9, Grotius lays down the 
conditions annexed to the exercise of this right 
of necessity. As 1st, It shall not be exercised 



[ 300 J 

until all other possible means have been used ; 
2d. nor if the right owner is under a like neces- 
sity ; and 3dly, restitution shall be made as sooh 
as practicable. Vide also lib. 3, c. 17, sect. 1. 

Grotius examplifies what he has said in the 
foregoing passages, thus, (sect, x,) " Hinc colli- 
"gere est, quomodo ei, qui bellum pium gerit 
" liceat locum ocupare, qui situs sit in solo paca- 
" to ; nimirum si non imaginarium, sed cerium 
" sit periculum, ne hostis eum locum invadat, et 
" inde irreparabilia damna det : deinde si nihil su- 
" matur, quod non ad cautionem sit necessarium, 
"puta, nuda loci custodia, relicta domino ver© 
*' jurisdictione et fructibus : postremo, si id fiat 
" animo rediendse custoddse simulatque necessitas 
" ilia cessaverit. ' Enna aut malo, aut necessa- 
" rio facinore retenta,' ait Livius, quia malum hie, 
'^ quicquid vel Ttiinimum, ahit a necessitate,'''' Slc. 

From these quotations it must be evident that 
Grotius, in the first mentioned passage, does not 
rely upon any principle similar to that which is 
attributed to Vattel, and that he does not hold the 
seizure of articles of the third class (among which 
provisions are included) not bound to a port be- 
sieged or blockaded, to be lawful when made with 
the mere view of annoying or reducing the ene- 
)ny, but solely when made with a view to our own 
preservation or defence, under the pressure of 
that imperious and unequivocal necessity, which 
breaks down the distinctions of property, and 
upon certain conditions, revives the original right 
of using things as if they were in common* 



[ 301 ] 

In book 3, ch. 7, sect. 1, (of neutrals in war,) 
this author, recapitulating what he had said before 
on this subject, further explains this doctrine of 
necessity, and most explicitly confirms the con- 
struction I have placed upon chap. 1, sect. 5. 
(Vide also Lee on Captures, p. 158, where the 
same construction is put upon Grotius.) 

Rutherforth, in commenting upon lib. 2, c. 1, s. 
5, also explains what Grotius there says of the 
right of seizing provisions upon the footing of ne- 
cessity — and supposes his meaning to be that the 
seizure will not be justifiable in that view, "un- 
less the exigency of affairs is such that we cannot 
possibly do without themy (2d Ruth. p. 585.) 
And in commenting on lib. 3, c. 17, s. 1, he says, 
the necessity must be absolute and unavoidable. 
(Vide Ruth. p. 586.) 

So far as Grotius considers the capture of arti- 
cles of the 3d class as a means of reducing the 
enemy, he confines the right within very narrow 
limits ; — for he supposes the trade of neutrals, in 
these articles, to be lawful even to a besieged or 
blockaded port, " unless a surrender or a peace 
is quickly expected^ 

Instead of stating provisions to be contraband 
in any case, (other than those of siege or block- 
ade,) he declares it to be the duty of neutrals to 
supply both parties to the war icith provisions ; 
(lib. 3, c. 17, s. 3 ;) and he places no other restric- 
tion upon this duty than that they are not to re- 
lieve the besieged. 

39 



[ 302 ] 

I think tliat it may be confidently concluded, 
that this writer, in place of countenancing the or- 
ders! of 1797, upon any idea of contraband, may 
be relied upon in that view as a strong authority 
against them.* 

Every other writer on the law of nations, so 
far as has come within my observation, in treating 
upon the subject of contraband, limits the right of 
seizing goods, not generally contraband of war, 
(and provisions among the rest) to such cases as I 
have stated above. 

Rutherfoith, in a work of great merit, speaking 
particuhirly of the article of provisions, so con- 
fines tliis right. (2 vol. Inst. Nat. Law, p. 583.) 



* Even it" it were proved that the opinion of Grotius (lib. 3, c. 
1, s. 5.) appHed to the orders of 17*)3, the rule of compensation 
established by the mnjority of the Doard would still be proper. 
For this writer tells us in the sections before quoted, as well as in 
the section which contains the opinion relied upon in favour of 
these orders, that when under the pressure and plea of necessity, 
we appr<)])riaie that which belongs to others, we must make resti- 
tution or compensation to the owner, and of course, we come 
again to the question in the case of the Betsey, Furlong, " ought 
not the compensation to be equal to the damage sustained ?" Vat- 
icl, speaking of this right of necessity, and putting the same case 
with Grotius, has this passage. (Vattel, b. 3, c. 7, s. 122.) " Ex- 
treme necessity m\\y even authorize the temporary' seizAue of a 
place, and the putting a garrison therein for defending itself 
against llie enemy, or preventing him in his designs of seizing 
this place when the snverci;in is not able to defend it. But when 
the danger is over, it must be immediately restored, paying all the 
ch;n-ges, inconveniences, and damages caused by seizing the 
place.*' Burlamaqui's P'inciples of Natural and politic Law, 
vol p. 1 Ruih. p. 8'), and Lee on Captures to the same effect 
— see also 2 Ruth. .")87. and Grotius. lib. 3, c. 17. s. 1. 



[ 303 ] 

Bynkershoek (whom I forbear to quote at laroe, 
since Mr. Gore has already done so) also so con- 
fines it. 

Lee, on Captures, ch. 11 and 12, followmg 
Bynkershoek, upon a full consideration of the 
practice of nations, also so confines it ; and he con- 
cludes his 1 2th chapter in these words, " From 
what has been said, it appears that the whole 
matter turns upon the place being besieged or 
not, as to the goods which are not contraband, 
(among which he reckons provisions,) or pro- 
hibited by treaty. Those which are so, being at 
all times during the war lawful prize, &c. Postell. 
Specira. Jur. Marit. sect. 11, has the same 
limitation. 

See also in Zouch, and Valin's Commentary on 
the ordinances of Louis the XIV., the same limi- 
tation. 

It appears that, so far as the authority of the 
writers on the law of nations can influence this 
question, the orders of 1795 cannot be rested up- 
on any just notion of contraband ; nor can they 
in that view be ju'stified by the reason of the 
thing or the approved usage of nations.* 

* Mr. Hammond's justification of the provision order of 1793, 
to the American government seems to carry this principle to a 
still greater extent : for he says, in his letter to Mr. JeflVrson, of 
the 12th of September, 1793, (covering a copy of those ortlers,) 
" that by +he law of nations, as laid down by the most modern 
writers, it is expressly stated, that all provisions are to be con- 
sidered as contraband, and as siirh liable to confiscation, in the 



[ 304 ] 

If the mere hope (however apparently well 
founded) of annoying or reducing an enemy by 
intercepting the commerce of neutrals in articles 
of provision, (which are no more contraband in 
themselves than common merchandise,) to ports 
not besieged or blockaded will authorize that in- 
terruption, I think it will follow, that a belligerent 
may at any time prevent (without a siege or block- 
ade) all trade whatsoever with its enemy ; since 
there is at all times reason to believe that a na- 
tion having little or no shipping of its own may 
be so materially distressed, by preventing all other 
nations from trading with it, that such preven- 
tion may be a powerful instrument of bringing it 
to terms. The principle is so wide in its nature, 
that it is in this respect incapable of any boun- 
dary. One may reason upon it to the total anni- 
hilation of neutral commerce — or rather it inevit- 
ably leads to that inadmissable result. There is 
no solid distinction, in the view of this principle, 
between provisions and a thousand other articles. 
Men must be clothed as well as fed ; and even the 
privation of the conveniences of life is severely 
felt by those to whom habit has rendered them 
necessary. Besides, a nation at war, in propor- 
tion as it can be debarred of its accustomed 
commercial intercourse with other states, must be 
enfeebled and impoverished, and if it is allowable 



case where the depriving the enemy of those supplies, is one of 
the means intended to be employed for reducing him to reasona- 
ble terms of peace."' 



[ 305 ] 

to a belligerent to violate the freedom of neutral 
commerce in respect to any one article of trade, 
notoriously not contraband in se, upon the expec- 
tation or imagined practicability of annoying the 
enemy, or bringing him to terms by a seizure of 
that article, and preventing it from reaching his 
ports, why not upon the same expectation of an- 
noyance (equally rational, and indeed more so) 
cut oft", as far as possible, by captures, all com- 
munication with the enemy, and thus strike at 
once at his power and resources in a way which 
would not often fail of being effectual ? 

We know that, in the case of siege or block- 
ade, there is no distinction between provisions 
and other articles of merchandise. The besieger 
may stop all commodities bound to the place be- 
sieged, and if this barbarous mode of hostility is 
admitted to extend itself beyond its ancient lim- 
its, I know not where it is to find others, which, 
while they leave provisions Viable to seizure, shall 
exempt other commodities, not contraband in 
themselves, from a similar fate. 

The principle in question, into whatsoever form 
it may be moulded, will not allow of such a re- 
striction. It stands simply upon the j^ossihility 
of injuring or bringing an enemy to terms by 
intercepting provisions on their way to his ports ; 
or, as we find it in the letter which I have just 
mentioned in a note, " Upon the intention of em- 
ploying the seizure of provisions on their icay 
to the ports of an enemy as the means of reduc- 
ing him, to reasonable terms of peace^ Surely 



[ ^^c ] 

if such a foundation be sufficient for tliis princi- 
ple, it will always be lawful for a belligerent to do 
any act whaUoerer, or commit depredations upon 
any trade ichat-oever, provided it shall appear to 
be possible, by doing so, to arnwif or hriitg the 
enemy to tertns, or provided he shall only intend 
by doing so to reduce the enemy to reasonable 
terms of peace. 

Hence this new rule of the law of nations would 
furnish a complete apology for the Dutch placart 
of 1630, by which they prohibited all commerce 
with Flanders, (doubtless with a prospect, and 
certainly with an intention of injuring and bring- 
ing the enemy to terms, by enforcing such a [>ro- 
hibition,) and for the convention between Eng- 
land and Holland, in the treaty of Whitehall, by 
which they agreed to prohibit all commerce with 
France, unquestionably with the same prospect 
and intention. Yet these attempts have been re- 
probated as lawless and oppressive by all the 
world ; and in the last instance, upon a counter 
treaty being entered into between Sweden and 
Denmark, in 1693, for maintaining their rights 
and procuring just satisfaction, the parties to the 
convention (says Vattel) perceiving that the com- 
plaints of the two crowns were well grounded, 
did them justice. 

It is true indeed, that these attempts were not 
made with any reference to the new-found prin- 
ciple ; for it was not then supposed to exist. 

Those who struck so deeply at the commerce 
of Europe, in 1630 and 1689, seem to have be- 
lieved that they could only lend a colour to their 



[ 307 ] 

enterprizeby pretending that they had bJockadedj 
or intended to blockade the ports of their enemies. 
The pretence was manifestly frivolous ; but it 
would appear to be at least as well founded as 
the vague allegation of a hope, or prospect, or in- 
tention of reducing such a country as France by 
famine. 

In a word, if a belligerent is empowered by the 
law of nations to seize the property of neutrals 
upon its own terms, whensoever that belligerent 
shall believe, or atiect to believe that by such 
means its enemy may be annoyed or reduced, few 
nations would choose to remain neuter. A state 
of war would be infinitely preferable to such a 
state of neutrality. I say, " affect to believe," — 
because the principle now contended for is liable 
to be thus abused. Who is to be the judge when 
there exists a prospect of reducing the enemy by 
violating the acknowledged liberty of commerce ? 
If the belligerent is not to be himself the judge, 
at least in the first instance, the principle is an 
idle one, and means nothing ; and, if he is to be the 
judge, it follows that the principle is more than an 
idle one, and will be applied in practice upon false 
as well as mistaken grounds. What standard 
have neutral nations to refer to, for the purpose of 
ascertaining the abuse of this limitless discre- 
tion ? The standard of siege or blockade is de- 
serted — and what can we substitute in its place 
but speculative calculations upon probabilities 
which will be as various as the interests, the hoj es, 
and the inclinations of those who make them, and 
never can present a certain result until after they 



[ 308 I 

have been acted upon ? It is upon this ground, 
among others, that modern writers on the law of 
nations reject the idea of Grotius, that all trade 
to a place besieged or blockaded is lawful, unless 
a surrender or a peace is quickly expected. 

Without professing to enter into much detail 
upon this occasion, the foregoing considerations 
appear to me to prove satisfactorily, that the or- 
ders of 1795 cannot, in the light in which I am now 
considering them, be justified or excused.* 



* Even if the general position stated by Vattel be admitted in 
the utmost possible latitude, still it would not follow that provi- 
sions belonging to neutrals, and bound to France, could right- 
fully be seized, as the orders of 1795 directed. Before articles 
not contraband in se can be seized, even when bound to a 
besieged or blockaded port, the person attempting to carry them 
there must be apprised of such siege or blockade, and it is only 
in his persisting in his efforts to supply the place after such know- 
ledge that his cargo becomes liable to seizure. In what way a 
neutral is to be infornied of the hope or prospects of one belli- 
gerent of reducing the other by famine, or of its intentions of re- 
sorting to the stoppage and seizure of all provisions bound to the 
<:nemy, as a means of reducing him to terms, 1 know not, unless 
it be from the declarations of that belligerent : but we may, I 
think, safely assume that it is indispensible that he should have 
this information before his cargo of provisions on its way to the 
ports of the enemy, not besieged or blockaded, can be taken 
upon any terms of contraband. In cases of seizure under the 
orders of 1795, the American traders had no information of this 
sort. Great Britain had made no declaration amounting to a 
notice of its hopes, prospects, or intentions in this particular ; and 
how otherwise a neutral could obtain a knowledge of them, it is 
not easy to conjecture. The orders themselves were not made 
public. They were mere secret instructions to commanders of 
armed vessels, and were not even sent to the Court of Admiralty 



[ 309 ] 

It is now to be seen whether the 18th article of 
the treaty gives any sanction to those orders. 

as is usual. Even now it is found impracticable to procure a 
copy of them, although of every other order issued during the war 
copies have been e;tsily procured. The provision order of 1 793 
(which was made public) contained an alternative, that the vessel 
stopt might (upon giving security) proceed upon her voyage to 
the ports of any country in amity with his Majesty. This, to be 
sun , was little more than a nominal alternative ; but it does not 
appear that the orders of 1795 contained any alternative at all. 
How can it be imagined that the absolute and unconditional sei- 
zure of these provisions-cargoes could be lawful upon the footing 
of contraband, when those who were conveying these cargoes to 
France had not and could not have the least information of the 
hopes, &c. of Great Britain, of reducing that country by famine ? 
They could not collect such hopes, &c from any facts known to 
them ; for in truth there was not any state of things to produce a 
rational prospect of that sort ; and indeed it may well be doubt- 
ed whether there can be such a state of things in a country like 
France. To starve a single town or fortress is practicable, be- 
cause it cannot raise provisions to supply itself, and because it 
may be sufficiently prevented from receiving supplies from with- 
out ; but the fertile soil, the extensive territories and sea coasts 
of France, would seem to fix upon an attempt to treat it like a 
town or garrison, the character of wild and chimerical. 

At any rate, there must be a concurrence of circumstances, 
which have not happened in that country during the present war, 
to authorize the prospect in question. 

If the orders of 1795 are to be considered as an experiment on 
this subject, (and we are told that they are,) that t-xperiment has 
proved the rashness of the hope ; but in fact these orders made 
no experiment which has not been already made by those of 
1793 under circumstances equally, if not more favourable to such 
an enterprise. 1 believe the truth to be, that Great Britain in- 
tended by the orders of 1795 to supply its own wants, and had 
no expectation of making them instrumental in the reduction of 
the enemv. ^ 

40 



[ 310 ] . 

Upon this part of the case, I shall content my- 
self with transcribing the observations of a writer 
of the first eminence in America,* published while 
the treaty was under discussion there. It will 
not be necessary to subjoin more than a few re- 
flections of my own, because it happens that the 
topics now urged at the Board, in reference to this 
article, are in substance the same with those which 
occurred to the enemies of the treaty in the 
United States, and are consequently considered 
and (in my judgment satisfactorily refuted) in the 
number of that publication which I am about to 
quote. 

Indeed, it may safely be asserted, that if these 
objections had not been believed in America to 
be totally groundless, we should not now be sit- 
ting here in the character of commissioners. 

N°- XXXII.— O/ Camillus. 

" The 1 8th article of the treaty, which regulates 
" the subject of contraband, has been grievously 
" misrepresented — the objections used against it, 
" with most acrimony, are disingenuous and un- 
" founded," &c. 

" The most laboured, and at the same time 
"the most false of the charges against the 18th 
" article of the treaty is, that it allows prom- 
" sions to be he conti'abaiid in cases not heretofore 
" warranted by the laics of nations, and refers to 

* General Hamilton. 



[ 311 ] 
" the belligerent party the decision of what these 
" cases are. This is the general form of the charge. 
" The draft of a petition to the legislature of Vir- 
" ginia reduces it to this shape — the treaty ex- 
<' pressly admits " ' provisions are to be held con- 
" ' traband in cases other than when bound to an 
" ' invested place, and impliedly admits that such 
" ' cases exist at present.' " 

" The first is a palpable untruth, which may be 
" detected by a bare perusal of the article. The 
" last is an untrue inference, impregnated with the 
" malignant insinuation, that there was a design to 
<* .sanction the unwarrantable pretension of a right 
" to injlict famine on a whole nation, 

" Before we proceed to an analysis of the ar- 
" tide, let us review the prior situation of the 
" parties." 

" Great Britain it is known had taken and act- 
" ed upon the ground that she had a right to stop 
" and detain, on payment for them, provisions be- 
" longing to neutrals going to the dominion of 
" France. For this violent and impolitic mea- 
" sure, which the final opinion of mankind will 
" certainly condemn, she found colour in the 
" sayings of some writers of reputation on pub- 
'' lie law." 

" A passage of this kind from Vattel, has been 
"more than once quoted in these terms, ^ Com- 
" 'modities,' &c. Heineccius* countenances the 



* I have examined Heineccius, and find that he ranks provi- 
sions among the articles generally contraband of war, for which 



[ 312 ] 

opinion, and even Grotius seems to bear to- 
wards it. 

" Tiie United States with reason disputed this 
construction of the law of nations restraining 
the general propositions, which appear to fa- 
vour it, to those cases in which the chance of 
reducing the enemy by famine was manifest 
and probable, such as the cases of particular 
places bona fide besieged, blockaded, or in- 
vested. The government accordingly remon- 
strated against the proceedings of Great Britain, 
and made every effort against it, which pru- 
dence in the then posture of affairs would 
permit. The order for seizing provisions was 
after a time revoked, (i. e. the order of 1 793. 
W. P.) 

" In this state our Envoy found the business, 
pending the very war in which Great Britain 
had exercised the pretension, with the same 
administration which had done it ; was it to be 
expected that she would in a treaty with us even 
virtually or impliedly have acknowledged the 
injustice or impropriety of the conduct ? &c. &c. 
" On our side, to admit the pretensions of 
Great Britain was still more impossible. We 
had every inducement of character, right, and 
interest against it. What was the natural and 

he cites Bynkersh. c. 9, and Grotius, lib. 3, c. 17, s, 3. It need 
not be stated that these writers prove the reverse of this, and 
that the reverse of it is universalis admitted. Indeed, the l8th 
article expressly admits the reverse of it. W. P. 



[ 313 ] 

" only issue out of this embarrassment 1 Plainly 
" to leave the point unsettled, to get rid of it, to 
" let it remain substantially where it was before 
" the treaty. This I have good ground to believe, 
" was the real understanding of the two negocia- 
'' tors, and the article has fulfilled that view. 

" After enumerating specifically what articles 
" shall be deemed contraband, it proceeds thus, 
" ' and whereas the diflficulty of agreeing on the 
^^ * precise cases in which alone provisions and 
"'other articles, not generally contraband, may 
" ' be regarded as sucii, renders it expedient to 
" ' provide against the inconveniences and mis- 
" * understandings which might there arise : It is 
" * further agreed that whenever any such arti- 
" ' cles, so becoming contraband, according to the 
" ' laws of nations, shall for that reason be seiz- 
" * ed, the same shall not be confiscated, but the 
" * owners thereof shall be speedily and complete- 
" ' ly indemnified ; and the captors, or, in their 
" ' default, th«' government under whose authority 
" ' they act, shall pay to the masters or owners of 
" * such vessels the full value of all the articles 
" ' with a reasonable mercantile profit thereon, 
" ' together with the freight, and also the demur- 
" ' rage incident to such detention." ' 

" The diflftculty of agreeing on the precise 
" cases in which articles not generally contraband 
" become so from particular circumstances, is ex- 
" pressly assigned as the motive to the stipulation 
" which follows. 



[ 314 ] 

''This excludes the sujjposition that any cases 
"whatever were intended to be admitted, or 
" agreed. But this difficulty rendered it expe- 
'' dient to provide against the inconveniences and 
" misunderstandings, which might thence arise ; 
" a provision with this view is therefore made, 
'' which is that of a liberal compensation for the 
" articles taken. The evident intent of this pro- 
" vision is, that in doubtful cases, the inconve- 
" niences of the neutral party being obviated or 
" lessened by compensation, there may be the less 
" cause or temptation to controversy and rup- 
" ture, and the affair may be the more suscepti- 
" ble of negociation and accommodation. More 
" than this cannot be pretended, because the 
" agreement is, ' that, whenever any such arti- 
" ' cles, so become contraband according to the 
" ' existing laws of nations, shall for that reason be 
" ' seized, the same shall not be confiscated, but 
" ' the owners, &c." ' 

" Thus the criterion of the cases in which arti- 
" cles, not generally contraband, may from par- 
" ticular circumstances become so, is expressly 
" the existing law of nations, in other words the 
" existing law of nations at the time the transac- 
" tion happens. When these laws pronounce 
" them contraband, they may for that reason be 
" seized ; when otherwise, they may not be seiz- 
" ed. Each party is as free as the other to de- 
" cide whether the laws of nations do, in the given 
" case, pronounce contraband or not, and neither 



[ 315] 
is obliged to be governed by the opinion of the 
other. If one party, on a false pretext of being 
authorized by the law of nations, makes a 
seizure, the other is at full liberty to contest it, 
to appeal to those laws, and if he thinks fit, to 
oppose even to reprisals and war. This is the 
express tenor of the provision ; there is nothing 
to the contrary; nothing that narrows the ground, 
nothing that warrants either party in making a 
seizure which the laws of nations, independent 
of the treaty, do not permit ; nothing which 
obliges either party to submit to one, when it is 
of opinion that the law of nations has been vio- 
lated by it." 

"But as liberal compensation is to be made in 
every case of seizure whereof difterence of opi- 
nion happens, it will become a question of pru- 
dence and expediency whether to be satisfied 
with the compensation, or to seek further re- 
dress. The provision will in doubtful cases 
render an accommodation of opinion the more 
easy, and, as a circumstance conducing to the 
preservation of peace, is a valuable ingredient 
in the treaty. A very different phraseology 
was to have been expected, if the intention had 
been to leave each party at full liberty to seize 
agreeably to its oicn opinion of the laws of na- 
tions, upon the condition of making compen- 
sation. The stipulation would not then have 
been. " ' It is agreed that whenever either of 
' the contracting parties shall seize any such ar~ 



[ 316 ] 

" ' tides so becoming contraband." ' This makes 
*' not the opinion of fither party, but the fact of 
" the articles having become contraband by the 
" laws of nations, the condition of the seizure. 

" A cavil has arisen on the term ' existing,' as 
" if it had the effect of enabling one of the par- 
" ties to make a law of nations for the occasion.* 
" But this is mere cavil. No one nation can make 
" a law of nations, no positive regulations of one 
" state, or of a partial nomination of states, can 
" pretend to this character. A law of nations is 
" a law which nature, agreement, or usage hases- 
" tablished between nations ; as this may vary 
" from one period to another, by agreement or 
" usage, the article very properly uses the term 
" ' existing' to denote that law which, at the time 
" the transaction may happen, shall be then the 
" law of nations. This is a plain and obvious 
" use of the term, which nothing but the spirit of 
'' misrepresentation could have perverted to a 
" different meaning." 

" The argument against the foregoing construc- 
" tion is in substance this : It is now a settled doc- 
" trine of the law of nations, that provisions and 
^' other articles, not generally contraband, can ea- 
" sily become so when going to a place besieged, 
" blockaded or invested. Cases of this kind are fully 

* This has not been urged at the Poard on this occasion, but 
in tht' case of th^' Retsfy, Farloi)</, Mr. Gostling's objection to the 
jurisdiction amounts to it. W. P. 



[ 317 ] . 

•' provided for in a subsequent part of the article ; 
" the implication, therefore, is that something 
** more was intended to be embraced in the ante- 
" cedent part.''* 

" Let us first examine the fact whether all the 
" cases of that kind are comprehended in the 
" subsequent part of the article — I say they are 
"not. The remaining part of the clause divides 
" itself into two parts. The first describes the 
" case of a vessel sailing for a port or place be- 
" longing to an enemy, without knowledge that 
*' the same is either besieged, blockaded, or in- 
" vested and provides that, in such a case, the 
" vessel may be turned away, but not detained, 
" nor her cargo, if not contraband, confiscated, 
" unless after notice she shall again attempt to 
" enter. The second describes the case of a ves- 
" sel or goods which had entered into such port 
-'' or place before it was besieged, &-c. ; and de- 
" clares that neither the one nor the other shall be 
" liable to confiscation, but shall be restored to 
" the owners thereof. These are the only cases 
" described or provided for. A third, which oc- 
" curs on the slightest reflection, is not mentioned. 
" The case of a vessel going to a port or place 
" which is besieged, blockaded, or invested, with 
" notice of its being in that state when she com- 



* This argument at the Board, stood thus : — cases relative to 
siege, &c., are fully provided for in tlie latter part of the article, 
and, therefore, the former part is intended to embrace something 
more. W. P. 

41 



[ 318 ] 

" mences her voyage, or previous to her receiv- 
" ing notice from the besieging, bk)ckading, or 
" investing party. This is left to the operation 
" of the general law of nations, except so far as 
" it may be affected in respect to compensation 
" by the antecedent clause. Thus the fact which 
" is the foundation of the argument fails, and 
"with it of course — the argument itself. 

" But had this been otherwise, the conclusion 
" would still have been erroneous. The two 
" clauses are entirely independent of each other, 
" and though they might both contemplate the 
" same cases in the whole or in part, they do it 
" with an eye to very different purposes." 

" The object of the first is to lessen tlie danger 
" of misunderstanding, by establishing this gene- 
" ral rule, that whenever articles not generally 
" contraband, become so from particular circum- 
" stances according to the law of nations, they 
" shall still not be confiscated, but when seized 
" the owners of them shall be indemnified." 

" The object of the last is to regulate some 
" special consequences with regard to vessels and 
" goods going to, or which had previously gone 
" to, places besieged, blockaded, or invested ; and 
" in respect to which, the dispositions of the laws 
" of nations may have been deemed doubtful or 
" too rigorous. Thus it is held, that the laws of 
" nations permit the confiscation of ships and 
"goods going to places besieged, blockaded, or 
" invested : but this clause decides that if going 
" without notice, so far from being confiscated 



[ 319 ] 

" they shall not even be detained, but shall be 
" permitted to go whithersoever they please. If 
" they persist after notice, then the contumacy 
" shall be punished with confiscation. In both 
" instances, the consequence is entirely different 
" from every thing in the antecedent clause. 'I'here 
'* then is seizure with compensation. Here, in 
" one instance, seizure is forbidden, and permis- 
" sion to go elsewhere is enjoined. In the other in- 
" stances, the offending things are confiscated, 
" which excludes the idea of compensation. 
" Again, the last part of the last clause stipulates, 
" in the case which it supposes, the restoration of 
" the property to its owners, and so excludes both 
" seizure and compensation. Hence it is appa- 
" rent that the objects of the two clauses are en- 
" tirely foreign to each other, and that no argument 
" or inferertce whatever can be drawn from the 
" one to the other." 

*' If it be asked what other cases there can be, 
" except those of places besieged, blockaded, or 
" invested ? and if none other, what difficulty in 
" defining them ? and why leave the point so vague 
" and indeterminate ? One answer, which, in- 
* deed, has already been given in substance, is, 
" that the situation of one of the parties prevont- 
" ed an agreement at the time ; that not being able 
'* to agree, they could not define, and the alterna- 
" tive was to avoid definition. The want of defi- 
" nition only argues want of agreement. It is 
" strange logic that this or that is admitted be- 
" cause nothing is defined !" 



[ 320 ] 
" Another answer is, that even if the parties had 
" hern agreed that there were no other cases than 
." thoc^e of besieged, blockaded, or invested places, 
" still there would have remained much room for 
** di.Npute about the precise cases, owing to the 
" impracticability of defining what is a besieged, 
" blockaded, or invested place. About this there 
" has been frequent controversy ; and the fact is 
'' so complicated, and puts on such a variety of 
" shapes, that no definition can well be devised 
" which will suit all. Thence nations, in their 
" compacts with each other, frequently do not at- 
" tempt one ; and, where the attempt has been 
"made, it has lel't almost as much room for dis- 
" putp iibout the definition, as there was about 
" the thing." 

" iVioreover, is it impossible to conceive other 
" cases than those mentioned above, in which pro- 
" visions and other articles not generally contra- 
" band might, on rational grounds, be deemed so ? 
" What if they were going expressly, and with no- 
" tice to a besieged army, whereby it might ob- 
" tain a supply essential to the success of its ope- 
" r.-itions ? !s there no doubt that it would be jus- 
" tifiable in such case to seize them ? Can the 
" lit)erty of trade be said to apply to any instance 
" o{ direct and immediate aid to a military ex- 
" peditionf It would be at least a singular effect 
" of the rule, if provisions could be carried without 
"interruption, for the supply of a Spanish army 
" besieging Gibraltar, when, if destined for the 



[ 321 ] 

'''supply of the garrison in that place, they might 
" of right he seized by a Spanish fleet. 

" The ca lumniaturs of the article have not had 
" the candour to notice that it is not confined to 
" provi<ions, but speaks of provisions and other 
" articles. Even this is an ingredient which com- 
" bats the supposition that countenance was to be 
*' given to the pretensions of Great Britain with 
" regard to provisions w^hich, depending on a rea- 
" son peculiar to itself, cannot be deemed to be 
"supported by a clause including other articles 
" to which that reason is entirely inapplicable." 

" There is one more observation which has 
" been made against this part of the article, which 
" may deserve a minute's attention. It is this, 
" that although the true meaning of the clause be 
" such as I contend for, still the existence of it af- 
" fords to Great Britain a pretext for abuse, which 
"she may improve to our disadvantage. I an- 
" svver, it is difficult to guard against all the per- 
" versions of a contract which ill faith may sug- 
" gest. But we have the same security against 
" abuses of this sort, that we have against those of 
"other kinds, the right of judging for ourselves, 
"and the power of causing our rights to be re- 
" spected. We have this plain and decisive re- 
" ply to make to any uncandid construction which 
" Great Britain may at any time endeavour to 
" raise. * The article pointedly and explicitly 
" ' makes the existing law of nations, the stan- 
" ' dard of the cases in which you may rightfully 
" ' seize provisions and other articles, not gene- 



[ 322 ] 

'' ' rally contraband. This law does not autho- 
*' * rize the seizure in the instance in question ; you 
" ' have consequently no warrant under the treaty 
" ' for what you do." ' 

*' The same disingenuous spirit, which tinctures 
" all the conduct of the adversaries of the treaty, 
" has been hardy enough to impute to it the last 
^' order of Great Britain to seize provisions going 
" to the dominions of France." 

" Strange ! that an order issued before the 
" treaty had ever been considered in this country, 
" and embracing the other neutral powers be- 
" sides the United States should be represented 
"as the fruit of that instrument! The appear- 
" ances are, that a motive no less imperious than 
"that of impending scarcity has great share in 
"dictating the measure, and time 1 am persuaded 
" will prove that it will not even be pretended to 
"justififit by any thing in the treaty. ''"' 

In this last persuasion it appears that this wri- 
ter has been mistaken ; but his inducements to 
adopt it will hardly fail to convince those who 
shall be disposed to examine them with candour, 
that, although the persuasion has not been coun- 
tenanced by the event, it will not be brought into 
discredit by it. 

There is one topic which the 18th article of the 
treaty has produced at the Board, upon which Ca- 
millus has not observed, and upon which I shall, 
of course, bestow some slight consideration. 

That article says, that the owners of the cargoes 
becoming contraband by the laws of nations, arid 



[ 323 ] 

for that reason seized, shall be speedily and ami- 
pleiely indemnified. 

It is argued that, as the article goes on to express 
the understanding of the contrat ting parties as to 
the import of the terms completely indefrmified, 
by prescribing a rule for the attainment of com- 
plete indemnification, we have here a precise 
commentary upon the words " full and complete 
compensation," used in the seventh article of the 
treaty. 

The rule is, '' the value of the cargoes and a 
reasonable mercantile profit, with freight," &c. 

I shall not trouble myself to inquire into the 
exact scope of this rule, — nor shall I occupy my- 
self with an inquiry whether the words mdemifi- 
cation and com^pensation are so far synonimous 
as that we should be justified in taking the sense 
of the contracting parties upon the import of the 
former, as conclusive evidence of the import of 
the latter. For, surely, a rule which should com- 
pletely indemnify or compensate the owner of 
goods become contraband, and for that reason 
rightfully taken from him by the laws of nations, 
might still be wholly inadequate to the complete 
compensation of the owners of a cargo wrong- 
fully captured or condemned. 

The term complete indemnification or compen- 
sation depends, for its scope and for the rule 
which shall attain it, upon the nature of the 
case to be redressed. We are required by the 
Vllth article, in all cases to grant " complete 
compensation," where we grant any thing — but 



[ 324 ] 

do we apply the same rule in every case I or do 
we not rather understand by " compiete compen- 
sation" that retribution which is commen.'^urate 
with the injury received ? 

In short, it can never be satisfactory to abstract 
the words " complete indemnification" in the 18th 
article from the subject to which they are applied, 
and then, reasoning upon their abstract n)eaiiing, 
to draw an inference from them that shall ati'ect 
an entirely different subject. There is not a mem- 
ber of this Board who has heretofore acted upon 
this idea. We have all agreed that in granting 
" complete compensation" we are not always 
obliged to give freight or demurrage ; but the rule 
in the 18th article gives freight and demurrage 
universally ; and if that rule is proper for our go- 
vernment at all, we must adopt it uniformly, for 
we are compelled to grant complete compensation 
in every instance in which it is proper for us to 
relieve. This absurdity would follow, that we 
should apply the same measure of redress to cases 
wholly different in principle, and, instead of suit- 
ing the compensation to the injury under all its 
circumstances, should treat alike a claimant whose 
case was liable to no exception, and one whose 
case was attended with such facts as not only to 
warrant the original capture for the purpose of 
judicial investigation, but to destroy the equitable 
claim to freight and all title to demurrage. 

2dly. We are next to inquire whether these or- 
ders were justified by necessity. Great Britain be- 



[ 325 ] 

ing as alleged at the time of issuing them threa- 
tened with a scarcity of those articles directed to 
be seized. 

I shall not deny that extreme necessity may jus- 
tify such a measure. It is only important to as- 
certain whether thnt extreme necessity existed on 
this occasion, and upon what terms the right it 
communicated might be carried into exercise. 

We are told by Grotius, that the necessity must 
not be imaginary — that it must be real and press- 
ing, and that even then it does not give a right 
of appropriating the goods of others until all 
other means of relief, consistent with the neces- 
sity, have been tried and found inadequate. Ruth- 
erforth, Burlemaqui, and every other writer who 
considers this subject at all, will be found to con- 
cur in this opinion. 

No facts are stated to us by the agent of the 
crown, from which we might be justified in in- 
ferring that Great Britain was pressed by neces- 
sity like this — or that, previous to her resorting 
to the orders of council, other practicable means 
were tried for averting the calamity she feared. 
It is not to be doubted that there were other 
means. The offer of an advantageous market, 
in the different ports of the kingdom, was an ob- 
vious expedient for drawing into them the pro- 
duce of other nations. IMerchants do not require 
to be forced into a profitable commerce. They 
will send their cargoes where interest invites, and 
if this inducement is held out to them in time, it 
will always produce the effect intended. 

42 



[ 326 1 

But so long as Great Britain offered less for 
the necessaries of life than could have been ob- 
tained from her enemy, was it not to be expected 
that neutral vessels should seek the ports of that 
enemy and pass by her own ? Can it be said that 
under the apprehension (not under the actual ex- 
perience) of scarcity, she was authorized to have 
recourse to the forcible seizure of provisions be- 
longing to neutrals, without attempting those 
means of supply which are consistent with the 
rights of others, and which were not incompatible 
with the exigency ? 

After these orders had been issued and carried 
into execution, the British government did what it 
should have done before. It offered a bounty 
upon the importation of the articles of which it 
was in want. The consequence was, that neutrals 
came with these articles, until at length the mar- 
ket was found to be overstocked. The same ar- 
rangement, had it been made at an earlier period, 
would have rendered wholly useless the orders of 
1795. 

I do not undertake to judge, for I have no suf- 
ficient data upon which to judge, whether at the 
time of issuing these orders, there was, or was 
not, reasonable ground for apprehending that sort 
of scarcity which produces severe national dis- 
tress, or national despondency, unless extraordi- 
nary measures were taken for preventing it. 

But it will not admit of a question, that there 
was no ground for apprehending that such a ca- 
lamity would happen, unless the government re- 



[ 327 ] 

sorted to depredations upon neutral trade, and 
seized by violence the property of its friends. 

That such a resource should not be placed in 
the front of the expedient for warding off an evil 
like this, seen only in perspective, is too plain for 
argument. 

I do not desire, on this occasion, to determine 
more than is necessary to the formation of a cor- 
rect judgment upon the case before us : and 
hence it is that I content myself with the limited 
view I have here taken of this part of the subject. 

Let it now be supposed that the alleged ne- 
cessity was such as warranted the orders of 1795, 
and the seizure under them. How does this vary 
the rule of compensation \ Upon this supposition 
no more will be proved, than that Great Britain 
might by force assume the pre-emption of the ar- 
ticles in question ; but can it be imagined that she 
could assume this pre-emption upon any other 
terms than giving to the neutral as much as he 
could have obtained from those to whom he was 
carrying them ? 

Great Britain might be able to say to neutrals, 
" you shall sell to us ;" but does it follow that she 
could also say, you shall sell to us upon worse 
terms than you would have procured elsewhere in 
the lawful prosecution of your commerce ? 

The authorities already cited in a note will an- 
swer these questions satisfactorily. 

Grotius, lib. 2, c. 2, s. 6, &c. — lib. 3, c. 1, s. 5, 
c. 17, s. 1. &.C. — 1 Ruth. 85, and Burlemaqui — 



[ sn ] 

Vattel, b. 3,c. 7, s. 122—1 Ruth. 405—2 Ruth. 
586, 7. 

Bui upon such a subject neither authorities nor 
arguments can be required. 

WM. PINKNEY. 

London, 25th June, 1797. 



THE MOLLY— Fowr/^. 

Mr. Pinkney. — The information given to the 
Board, by Joshua Johnson, Esq., in relation to 
this case, has satisfied me that the memorial ought 
to be dismissed. 

But for that information, I should think the 
claimants entith^d to demurrage.* 

27th Feb. 1797. WM. PINKNEY. 



* It may be necessary to add, by way of explanation, that the 
demurrHge above alUuled to is not on account of the detention 
of the vessel, /'or the purpose of giving effect to the captor's right 
to the cargo, but on account of her detention, when it was no 
longer necessary in reference to the cargo, and when the object 
of it was solely the vessel herself. 

The papers, both false and true, and all the evidence in the 
cause, concurred in showing the property of the vessel to be as 
claimed; and, but for the information of Mr. Johnson, I should 
have determined that inquiry into that property, after such a con- 
currence of testimony, was unreasonably protracted, and that 
much of the intermediate detention, from the appearing of that 
testimony until the decree for restitution was wrongful. 

The capture was on the 8th of August, 1 793. The cargo was 
condemned 2d of May, 1794, but the yessel was not restored un- 



[ 329 ] 

THE SALLY— Choate, Master. 

\^^- Mr. PfNKNKY. — I am of opinion, 1st. That 
the claimants are entitled to the costs below, to 
damaijes and demurrage. 2d. That they are 
entitled to the costs of appeal, and to be reimburs- 
ed suc*h costs as were adjudged against them to 
the captors. 

There was no probable cause of seizure or de- 
tention. 

The orders of the 6th November 1793, relied 
upon in the respondent's printed case, might have 
excused the captor in a controversy between him 
and the claimants, but can have no weight in a 
question between the claimants and the British 
government under the treaty. The complaint is 
now to be considered independent of those orders. 

According to Vattel, credit should have been 
given to the ship's papers produced by the neu- 
tral master at the time of the capture, unless any 
fraud appeared in them, or there were very good 
reasons for suspecting their validity. 

1st. The ship's papers upon the face of them 
bore no marks of fraud, and afforded no reason at 
all to justify a doubt of their validity and fairness. 



til the 5th of July following — although no new lights were 
thrown upon the property of the vessel. 

This explanation is made long after the filing of the foregoing 
opinion, the inexplicit nature of which did not sooner strike rae* 
In fact, it is only inexplicit to those who are not acquainted with 
the circumstances of the case in which it was filed. W, P. 



[ 330 J 

The want of formal bills of lading could not 
affect their credit, as there were papers on board 
in substance equivalent to them. 

Invoices to which the master's acknowledg- 
ments were subjoined, stating explicitly for whose 
account the goods were shipped, and engaging to 
follow the shippers' instructions by which they 
were accompanied, and to which they refer, an- 
swered every object for which bills of lading are 
calculated. 

The invoices, acknowledgments and instructions, 
taken together, formed a body of clear and une- 
quivocal evidence of the ownership of the cargo, 
its place of destination, the person to whom it was 
consigned, and the manner in which the proceeds 
were to be disposed of. Bills of lading could 
not have done more, nor indeed so much ; and if 
in point of iivformation, they would at most have 
been barely equal to these documents, in point of 
law they could not in any respect lay claim to su- 
perior efficacy. 

Indeed, as the whole cargo was consigned to the 
master on board, the manner in which it was 
documented was better suited to the nature of the 
transaction than bills of lading in the customary 
form. An engagement on the part of the master 
to deliver the cargo to himself upon his arrival in 
port, could hardly be so proper as an engagement 
to follow the instructions of the consignors either 
endorsed upon or accompanying the invoice. 

It is alleged in the printed case of the respon- 
dents that there is in this respect an irreconcileahle 



[ 331 J 

inconsistency between the letter of instructions 
from the ship owners to the master and the other 
papers relative to the cargo. It is true that lliig 
letter does direct the master to take his freight 
for goods not shipped on their account, according 
to bills of ladings but it is so obvious that this 
was mere inaccuracy, that it ought not to have 
been mentioned as a rational ground of suspicion. 
The instructions of those who shipped the goods 
on freight prove universally that there was no 
bill of lading signed for them, for they refer to an 
invoice and to that only ; which invoice, having 
the master's acknowledgment and engagement 
as above stated, subjoined together with the 
freighters' instructions therein referred to endor- 
sed, was, to every purpose of law or explicitness, 
equal to a bill of lading, and might well have been 
called so by the ship-owners (putting inadvertence 
out of the question) without hazarding the credit 
of the ship's papers with those, who should be dis- 
posed to place upon them a just and liberal con- 
struction. 

But surely if a bill of lading was purposely omit- 
ted with dishonest views, the same views would 
have induced the ship-owners to say nothing 
about bills of lading in their instructions to the 
master, which doubtless were not intended for 
ooncealment. 

If bills of lading were actually signed, but meant 
to be concealed from British or other cruizers, for 
fraudulent purposes, it was the perfection of stu- 
pidity to refer to them in that very paper wliich 



[ 33!2 J 

was sure to come under the inspection of those 
ao^ainst whom the fraud was meditated. If it was 
designed to carry on a fraud by means of show- 
ing false papers and concealing true ones, what 
reason can be imagine*! why the master should 
not have signed and taken with him false hills of 
lading, as well as receive on board, as instru- 
ments of deception, jTa/sc «w</ colourable invoiceSt 
to which he made himself a party as effectuidly 
as he could be to bills of lading] There can be 
no reason, unless we suppose that fraud consults 
form in what it intends to keep out of sight, but 
neglects it altogether in what it fabricates, as the 
only means of imposition, that it is scrupulously 
technical when it is of no use to be so, but is 
slovenly and negligent when its own object pre- 
scribes to it a nice attention to regularity and ac- 
curacy. He who adopts such a supposition must 
reject all experience. In short, the objection ap- 
pears to be manifestly captious. 

It is further objected by Mr. Gosling, that the 
master's pretence of the vessel's destination from 
Rochelle to Amsterdam is contradicted by the 
letter of instructions from the ship-owners, <fec. 
If we are to take the letter of instructions with- 
out the postscript under the same date, this allega- 
tion is true. But why it is that we are to reject 
the postscript, (which expressly authorizes the des- 
tination to Amsterdam,) it would have been well 
for the objector to have explained. 

2d. If (as I hold to be most clear) the papers 
on board were free from any imputation upon the 



[ 3S3 ] 

tace of them, it is to be considered whether the 
preparatory examinations furnished any thing up- 
on which to impeach them. 

The law of nations requires that a belligerent 
making prize of a neutral, in the teeth of proper 
written documents, shall have Tery good reasons 
for his conduct. The reason in this case (even 
admitting it to have been known to the captor at 
the time of the seizure, which is not at all likely) 
was simply that Anduze, a Frenchman, who hap- 
pened to be, among others of his countrymen, a • 
passenger on board the Sally from America to 
France, did not, as the others did, leave the ship 
at Rochelle, but was proceeding in her to Amster- 
dam. That he had no interest in, or control over 
the cargo, appeared from the ship's papers, and 
(if the captor made any inquiries on the subject 
without which he could have known nothing of 
this alleged probable cause) it must also have ap- 
peared from the declarations of the master, mate 
and Anduze. 

It was, however, possible that, notwithstanding 
these papers and declarations, Anduze might be in- 
terested in the ship or cargo, or both ; and if the 
possibility of such an interest be a very good rea- 
son for distrusting the papers, &c. then, and then 
only, had the captor probable cause of seizure on 
this occasion. But possibility is not probable 
cause. There must be an apparently well-found- 
ed presumption. The presumption, here relied 
upon, was that Anduze would have landed at Ro- 
ohelle, if interest had not attached him to the 

43 



[ 334 ] 

ship ; but this was an arbitrary and fanciful pre- 
sumption — a mere surmise, rested upon the selec- 
tion of one motive out of many, all of them equal- 
ly, and some of them infinitely more, probable. 

Anduze had been for many years an inhabitant 
of America and the West Indies, and, of course, 
had been in no situation to calculate with certain- 
ty how far a residence in France would suit his 
views in life, his political opinions, or the part 
he might have acted previous to his arrival. It 
was not practicable for him even to ascertain 
whether he could be in safety there, during that 
turbulent sera of the Revolution. At Rochelle he 
might be enabled to make this estimate more con- 
clusively — and the result may be supposed to have 
been a conviction that it would be more prudent 
to go on to Holland. Rochelle too was at that 
time in a state of much disturbance, as appears 
by the proof, and this might have influenced him 
to prefer proceeding with the vessel. In short, 
without enumerating them, it must be evident that 
various causes, in no shape connected with the 
Sally or her cargo, might have induced him to re- 
embark, and as tiie fact was thus fairly attributa- 
ble to so many strong and probable reasons con- 
sistent with the ship's papers, and the declarations 
of the captured, if the captor would persist in 
carrying the vessel into port upon mere possibi- 
lity and surmise to the contrary, he did it at the 
peril of indemnifying the neutral if his surmise 
should turn out to he groundless. 

In taking Anduze to Amsterdam, the neutral 



[ 335 ] 

master was doing a perfectly innocent act ; and it 
would be strange if the consequence of this inno- 
cent act should be to subject him to the heavy loss 
he has incurred, although he had taken every pre- 
caution to manifest the neutrality of ship and car- 
go which could be supposed to be necessary. If 
such doctrine be according to the law of nations, 
it will be impossible for a neutral to provide for 
his security. Let his vessel and goods be docu- 
mented how they may, let his conduct be ever so 
unexceptionable, some solitary conjecture may al- 
ways be conjured against him which shall be suf- 
ficient to ruin all his prospects, and compel him 
besides to sacrifice his time and money in an ad- 
miralty contest, by which every thing is to be lost 
and nothing to be gained. I, for one, think better 
of the law of nations — and I am, therefore, of 
opinion that when Sir James Marriott pronounced 
for restitution, he should have granted to the 
claimants costs, damages and demurrage, unless 
he was restrained by the orders of 6th November, 
1793, which, however they might have bound him, 
are no rule for us. And, further, that as the 
claimants were obviously aggrieved by his refusal 
to grant these costs, &c., and were compelled to 
carry their case before the Lords for redress, the 
expenses attending, or consequent upon the ap- 
peal, are due to them from the British government. 

WM. PINKNEY. 
Gray's Inn Square, July 13<A, 1797. 



[ 336 ] 

THE BlANA-^Gardner. 

Mr. Pinkney. — I am of opinion that the vessel 
and cargo were seized and carried into port with- 
out probible ground of suspicion, that either vessel 
or cargo were lawful prize ; and that the facts af- 
terwards disclosed in regard to throwing papers 
overboard, which were, at the time of such dis- 
closure, proved to be wholly immaterial, and to 
have been destroyed under apparently well found- 
ed impressions that the privateer in chase was 
French, did not furnish any such ground. I think 
of course that the claimants are entitled to full 
and complete compensation for the loss and dam- 
age occasioned by this capture, including expenses 
and demurrage. 

WILLIAM PINKNEY. 

Februarij2M, 1797. 



THE SALLY— Hayes. 

Mr- Pinkney. — The question proposed in this 
case, and the decision it has received, have drawn 
from the British commisioners a declaration " that 
" they do not think themselves competent, under 
" the words of the treaty, or the commission by 
*• which they act, to take any share without the 
" special instructions of the king's ministers, in 
^' the decision of any cases in which the judicial 



[ 337 ] 

" proceedings are still depending in the ordinary 
"course of justice." 

This declaration, which at their instance has 
been recorded, assumes for its basis that our pow- 
ers, as they are to be found in the .treaty, do not 
embrace complaints in which the judicial remedy 
is yet depending ; and further that a contrary opi- 
nion pronounced by a majority of the Board, con- 
sisting of the two American commissioners and 
the fifth commissioner, is so far from being obli- 
gatory on the minority, consisting of the two 
British commissioners, that they (the British com- 
missioners) are bound, without special instruc- 
tions from, one only of the contracting parties^ so 
to oppose themselves to that opinion, as, by re- 
tiring from the Board, or otherwise impeding its 
progress or suspending its functions to prevent 
the effect to which the decision of the majority 
may, on such a subject, be entitled. 

Upon the points thus involved in this declara- 
tion, I have already given my opinion ; but the 
course which this transaction has taken makes it 
proper that I should file the reasons upon which 
that opinion has been formed. 

Stated in as few words as possible, they are as 
follows : 

1st. The principle that in the interpretation 
of our powers, the majority of the Board cannot 
conclude the minority, (upon which I shall first 
remark,) is not a new one. 

It occurred, though perhaps in a different form, 
was much canvassed, and finally abandoned in the 



[ 338 ] 

c'dae of the Betsey, Furlong. I had supposed 
that the inadmissible nature of this principle had, 
on that occasion, been fully understood, and that 
the principle itself would never be revived. 
This supposition was evidently authorized by the 
issue of that claim, as well as by the circumstan- 
ces that marked its progress, and has since been 
repeatedly confirmed in practice by both of the 
British commissioners. I allude particularly to 
their conduct on that class of complaints called 
provision cases. 

When those cases were preferred to us, the 
most prominent question, to which they gave oc- 
casion, was whether the judicial remedy had been 
sufficiently prosecuted according to the intent of 
the treaty. It was obviously impracticable to de- 
termine that question without looking to the ex- 
tent and quality of our powers, and interpreting 
the instrument creating them. The British com- 
missioners were of opinion, that those complaints 
were not within our cognizance, because, as they 
contended, the judicial experiment reaching no 
farther than the Court of Admiralty, had not been 
completely made. Yet they acquiesced in the 
opinion of the majority, and did not scruple to 
take all the share that was required of them in the 
several subsequent steps, by which that opinion 
was made to result in various awards to the per- 
fection and authentication of which they lent 
their names. We have not been told, nor can it 
be pretended, that the revival of this discarded 
principle can be referred to any reasons bearing 



[ 339 ] 

j^eciiliarly on the cases which are now to be af- 
fected by it, so as to account for that revival at 
this period more than at another appearing equal- 
ly to demand it. 

2. It can hardly be denied, or if denied, it is 
manifestly true, that the P>oard has the power to 
ascertain, /or the regulation of its own conduct, 
whether a claim preferred to it falls within the 
description of the complaints committed to it for 
examination and decision. 

Without such a power, the authority expressly 
communicated by the treaty to decide the merits of 
the claim, and the amount of compensation to be 
awarded, would be merely nominal and illusory. 

We are directed by the 7th article to proceed 
toith diligence to a certain specified end, viz., to 
determine claims presented to us under that arti- 
cle, according to their merits, and to equity, jus- 
tice, and the laws of nations. We cannot proceed 
to that end, without considering and determin- 
ing whether the claims so presented to us are 
within the article or not : of course, it is not pos- 
sible to doubt our competency to this incidental 
inquiry and determination. 

It is not, however, to be admitted, that the treaty 
does not in tenninis empower us to interpret for 
ourselves the submission it contains ; although it 
would be of no real importance, if it were other- 
wise. In stating the manner in which this Board 
is to proceed, the 7th article refers to the 6th. 
The 6th article says, that " the said commission- 
ers, in examining complaints and applications, are 



[ 340 ] 

empowered and required, in pursuance of the true 
intent and meaning of this article, to take into 
consideration all claims," &c. 

If the words " in pursuance," &c., mean any 
thing, they mean that the commissioners are to 
consider the nature and scope of the submission, 
the quality and size of their powers, and are to act 
accordingly in the execution of their trust. 

In a word, the Board has authority to determine 
its own jurisdiction. 

3d. If the Board possesses this authority, it 
will follow, inevitably, that it may be exercised by 
a majority of its members present, when the 
Board is duly formed For the treaty, after de- 
claring that three of the commissioners shall con- 
stitute a Board, and shall have power to do any 
act appertaining to the said commission, provided 
that one of the commissioners named on each 
side, and the fifth commissioner shall be present, 
proceeds thus : — "And all decisions shall be 
made hy the majority of the voices of the com-' 
missioners then present y 

I have, indeed, heard it suggested, that a dis- 
tinction is to be taken here between decisions upon 
the scope of our powers, and decisions upon the 
merits of complaints. 

I cannot conjecture upon what grounds such a 
distinction can be rested ; but I believe it to be 
plain, that there is no warrant for it in the treaty, 
where only I think it material to search for it. 

4th. If the Board has this power, and if it is 
proper to be exercised by the majority, then will 



[ 341 1 

it also follow, that the minority must submit to 
such exercise, and cannot rightfully control or pre- 
vent its etlect by seceding from the Board or 
otherwise. 

To say that the majority have the power to de- 
cide, and yet that this power may be resisted or 
evaded by the minority, so as that it shall wholly 
depend upon their will, is an incomprehensible 
solecism. It would be a waste of words to argue 
against so flagrant an absurdity. 

But if the British commissioners can on this 
occasion rightfully retire from the Board, to de- 
feat the will of the other commissioners compos- 
ing the majority, who does not see that they can 
do so on every other question of jurisdiction, or, 
to be more explicit, in every case that can occur ; 
and thus, although but a minor portion of a Board 
directed in the instrument of its constitution to 
act in all instances by a majority of voices, ren- 
der the whole authority and activity of that Board 
dependent upon their individual judgment, not 
only suspend at their pleasure, but annihilate its 
functions, not only retard its advances to a result 
which each member of it has sworn to endeavour 
with diligence to reach, but raise an insurmounta- 
ble barrier to the possible attainment of that re- 
sult ? 

Nor is it certain that the evil and the absurdity, 
if pushed to their utmost extent, would stop here. 
It is not clear that it would be open to the United 
States to complain of such a nullification of the 
seventh article of the treaty by the two British 

44 



[ 342 ] 

commissioners, as a breach of that article by the 
British government. Let it be supposed, for tlie 
sake of illustrating this idea, that we are right, and 
the British commissioners are wrong in the con- 
struction of our powers, but. that the British go- 
vernment does not choose to direct its commis- 
sioners to accede to our construction, or to take a 
share in giving efficacy to it, by attending to form 
a Board, could the United States, upon the 
ground of the treaty, remonstrate against this to 
the government of Great Britain as any violation 
of its plighted faith ? The British government 
might reply to such a remonstrance, that it lost no 
time in appointing its commissioners, in com- 
pliance with its undertaking ; that those com- 
missioners have the treaty for their guide, and are 
left to decide as that and their consciences shall 
dictate ; that it is not bound to control them in 
favour of any class of claimants, or to point out to 
them what is or is not their duty ; that it has done 
all to which its stipulation engages it, and that it 
is for the commissioners themselves, under the 
sanction of their official oath, to look to and as- 
certain the scope and complexion of the trust com- 
mitted to them by the two countries, and the man- 
ner in which that trust is to be discharged. 

I do not at present perceive that to such a vin- 
dication any satisfactory answer could be given, 
provided the British government did not by its 
own interference produce the secession of its com- 
missioners. 



[ 343 ] 

And here it is proper to remark that the decla- 
ration of these commissioners is so far from as- 
cribing its imagined incompetency in this and 
similar cases to any interference on the part of 
their government, or to any superinduced obstacle 
whatsoever, that it rests it exclusively on the words 
of the treaty and the commission by which they 
act.* 

I do not doubt the power, whatever may be my 
©pinion of the right of the British government, to 
restrain, its commissioners from attending the 
Board, or from performing any other act of duty. 
But it will not admit of a question that such a re- 
straint, if injurious to the other party to the treaty, 
or to its citizens, would be a clear and unequivo- 
cal breach of it, and might be so considered and 
proceeded upon by the government of the United 
States. 

We are not, however, arrived (and I devoutly 
hope we never may) at a state of things so much 
to be deprecated. The threatened secession is 
announced as the intended act of the commis- 
sioners themsehes, the propriety of which they 
profess to have deduced from the terms of the 
treaty and their commission. 

In what parts of both or either of these docu- 
ments they have been able to find the justification 
of a step so extraordinary in itself, and so impor- 
tant as to its possible effects, they have not thought 



* There is nothing restrictive in the commission, it is co-ex- 
tensive with the treaty. Vide. Journab. 



[ 344 ] 

it necessary in any sort to explain ; but in de- 
claring that they infer their supposed incompe- 
tency to take any share in our decision, and of 
course the necessity of their secession, from these 
sources only, they have sufficiently explained that 
no share in producing it is to be attributed to their 



government. 



There cannot in fact exist, on the part of their 
government, any inducement to such an interpo- 
sition. For even if our decision in this case on 
the import of the treaty should ultimately prove 
to be erroneous, no wrong would be done to the 
British government, since an award in pursuance 
of such a decision would be merely void. 

Our determination on the extent of our,powers, 
cannot take away or lessen the indefeasible right 
of the high contracting parties to interpret their 
own act, when the occasion shall be such as to in- 
cline them, and make it proper for them to exert 
that right. 

But, on the otl^er hand, a forbearance on our 
part to determine on our powers, so as to place 
ourselves in a situation to decide the merits of 
claims, and to fix the amount of compensation, if 
we shall believe any to be due, (according to the 
commands of the treaty and the tenor of our 
oath,) would reduce the article from which we de- 
rive our appointment to a dead letter, leave it 
without any inherent capacity to operate or be- 
come effectual, and make the Board rely in every 
stage of its progress (if, indeed, it could make 
any progress at all) upon the occasional instruc- 



[ 345 ] 

tions of the contracting- parties, which neither is 
oblii^er] to s^ive, or the uncertain event of siipple- 
tory negociations, over which we can have no 
control, and for which the article contains no 
provission. 

In short, I believe it to be clear that it is the 
duty of this Board to proceed by a niajority of 
voices, in the execution of the seventh article of 
the treaty, according to the estimate which the 
m.ijority shall make of the true intent and mean- 
ing of the article, leaving the validity and effect 
of their proceedings to the judgment of those by 
whom they were appointed : and I believe it to be 
peculiarly evident, that no minority of this Board 
ean of right control or prevent decisions apper- 
taining to the commission by the majority upon 
any idea of their own incompetency, or the col- 
lective incompetency of the Board : and further, 
that any actual want of power in the Board, or 
any of its members, cannot be supplied by the 
sf)ecial instructions of one only of the contract- 
ing parties. 

I come now to the other question involved in the 
declaration, viz. — Whether the Board is now au- 
thorized by the seventh article of the treaty to 
examine and decide cases in which proceedings 
are still depending in the ordinary course of 
justice ? 

On this question, the argument lies within a 
very narrow compass. 



[ 346 ] 

The article 3tipulates, " that in all the cases oi 
irregular or illegal capture or condemnation com- 
plained of in its recital, where, for whatever rea- 
son, adequate compensation could not at the time 
of making and concluding the treaty be actually 
obtained, had and received in the ordinary course 
of justice, full and complete compensation for 
the same will be made by the British government 
to the complainants." 

For the purpose of rendering this stipulation 
effectual, the same article provides for the appoint- 
ment of a Board of Reference, (consisting of five 
commissioners,) to whom the complaints in ques- 
tion are to be preferred and submitted for exami- 
nation and decision according to certain rules ; 
and it declares that the award of this Board shall 
be final and conclusive, both as to the justice of 
the claim and the amount of the sum to be paid 
to the claimant. 

The article further provides, " that eighteen 
months from the day on which the said commis- 
sioners shall form a Board, and be ready to pro- 
ceed to business, are assigned for receiving com- 
plaints and applications ;*' but that, nevertheless, 
the said commissioners shall he authorized, m any 
particular cases in which it shall appear to them 
to be reasonable and just, to extend the said term 
of eighteen months for any term 7iot exceeding 
six months after the expiration thereof. 

The article further provides, that each of the 
said commissioners shall take an oath or affirma- 
tion " honestly, diligently, impartially, and care- 



^[ 347 ] 

fully to examine, and to the best of his judgment, 
according to the merits of the several cases, and 
to justice, equity, and the laws of nations, to de- 
cide all such complaints as under the article shall 
he preferred to the said commissioners.'''' 

On the 10th of April last, the term of eighteen 
months, limited by the article for the exhibition of 
claims, expired ; but previous to its expiration (on 
the last day of the term) the present complaint, 
with a variety of others in which the judicial 
remedy was not exhausted, was preferred to us. 

As it is my intention to meet the general ques- 
tion arising out of the declaration of the British 
commissioners, I shall not here state or advert to 
the particular circumstances by which the present 
complaint, in relation to the point before us, 
might possibly claim to be distinguished. 

My opinion is, — that in all the cases of irregu- 
lar or illegal capture or condemnation recited in 
the preamble of the seventh article, in which, 
without the manifest delay, or negligence, or wil- 
ful omission of the claimants, adequate compen- 
sation has not been obtained in the ordinary course 
of justice, within the term assigned by the article 
for the reception of claims, we are authorized to 
proceed to an examination and decision of their 
merits, and to award compensation, if we shall 
believe it to be due. 

The following are in substance my reasons for 
that opinion : 

1st. It is obvious that complaints thus circum- 
stanced are properly before us, or to speak more 



[ 348 ] 

correctly, have been duly jyref erred under the ar- 
ticle. If they hare not been duly preferred, they 
fiever can be, and of course can never in any event 
become the subject of our consideration, which 
none of us maintain. 

The article assigns eighteen months for the re- 
ception of claims, and regularly every claim, to 
be entitled to the benefit of the article, must be 
presented to us within that term. 

We have authority, it is true, in particular 
cases, for the advantage of claimants, and upon 
special grounds of reason and justice, to extend 
the terms six months longer, but a claimant is not, 
therefore, under any obligation to pass by the 
general limitation for the purpose of throwing 
himself upon our discretion, and hazarding the 
total exclusion of his application. 

If he slips his time in the first instance, the 
treaty still allows him to ask to have his com- 
plaint received, upon showing sufficient cause to 
justify the indulgence ; but it cannot be imagined 
that he is bound to pretermit the exercise of his 
right of coming within the eighteen months, in 
order to put himself in a capacity to ask a favour 
in relation to the extension of that term, which he 
does not know that we shall grant. 

Every claimant then, whose case is or can be- 
come proper for our cognizance, (and we all ap- 
pear to agree that every case may sooner or later 
become so,) may file his application within the 
eighteen months, and if it be manifestly in his 
power to do so, must file it within that period. 



[ 349 ] 

The complaints in question, therefore, have 
been duly preferred under the article. 

2d. If they have been duly preferred under 
the article, it will not be difficult to prove by the 
express letter of it, that it is now our duty to pro- 
ceed to the examination and decision of them, 
according to their merits, and to justice, equity, 
and the laws of nations. 

It is not, I think, to be doubted that the framers 
of the treaty, in adjusting the terms of our official 
oath, have taken care that they should be suitable 
to their own views, and to our powers ; nor can 
it be too much to assume that whatsoever we find 
in that oath may be safely relied upon, so far as it 
reaches, as indisputable evidence of our duty. 

The oath commands us diligently to examine 
and decide according to their merits, and to jus- 
tice, equity, and the laws of nations, all such 
complaints as under the seventh article shall be 
preferred to us. 

Thus, then, a diligent examination and deci- 
sion of complaints is required to follow their due 
exhibition, a command which assuredly cannot 
be fulfilled, in regard to the class of cases in ques- 
tion, by delaying all examination and decision 
until the Lords of Appeal (and in some instances 
Sir James Marriott, and after him the Lords) 
shall have determiYied upon them, and until the 
tardy and circuitous process of that tribunal shall 
have been successively spent against captors, 
owners, and bail, to enforce their determination. 

45 



[ 350 ] 

Nothing can be n ore conclusive than the lau- 
guage of this oath to show that the makers of the 
treaty Hid not mean to authorize, far less enjoin, 
the indefinite procrastination now contended for ; 
but on the contrary that they designed to secure 
to the article that prompt and ready execution 
which alone could render it either just or satisfac- 
tory. 

od. But, independent of the explicit language 
of the oath, the whole scheme of the provision 
itst;lf points to a certain epoch, beyond which 
there shall not, of necessity, be any delay. 

The fixing of a period within whi<h claims were 
to be preferred, and the precise and very narrow 
limits imposed upon the power to extend it in 
particular cases, is unequivocal proof that the 
complete fulfilment of our functions was not to 
depend upon events which might nut happen for 
years, and might never happen at all. 

It is not practicable to conceive any valuable 
object that could be expected to be answered by 
compelling claimants to make their applications 
within a certain time, or to be barred for ever from 
redress, if these applications were afterwards to 
be dormant, not only until the determination of 
Admiralty suits, but until the execution of Admi- 
ralty decrees. 

In thus requiring the presentation of com- 
plaints within a defined limit, the framers of the 
treaty clearly suppose that all complaints, capa- 
ble of being perfected at all, would be perfected 



[ 351 ] 

by the lapse of it, that they would in its course 
obtain the ingredients indiispensible to their va- 
lidity, and that they would then or never be J rue 
in all those material allegations essential to their 
title to consideration and redress. 

In any other view they call upon parties to 
complain before the injury is consummate, and 
when it is uncertain that it ever will be so, and 
command them to allege that which is false, 
and may never be otherwise, for no conceivable 
purpose. 

It is not to be believed that claims would be 
thus forced before us with such anxious haste, 
and at the risk of so serious a penalty as future 
exclusion, if the negociators had not meant that 
they might be acted upon as perfect. 

They would at least have guarded against the 
consequences to which this premature exhibition 
of them (if such they intended it to be) was plain- 
ly calculated to lead. 

They would have protected those uninformed 
and defective applications from dismissal during 
their progress to completion, if they had conceived 
that they were to rely for their perfection on a 
train of circumstances to occur long after they 
should be preferred. But they have not done 
this : so that if these applications do in fact want 
the characteristic featue of a complaint under the 
article, there is nothing to hinder us from re- 
jecting them at once as irrelevant and groundl^^•^s, 
and thus shutting them out from all possibility of 
relief. 



[ 352 ] 

4tli. The article provides that his Britannic 
Majesty will cause the compensations adjudged 
by us to be paid at such places and times as we 
shall award, "and on condition of such releases 
" or assignments as by the said commissioners 
" may be directed." 

If it was in the contemplation of the contract- 
ing parties that the judicial remedy should in all 
its stages be exhausted by every claimant before 
he should be authorized to demand our aid, it is 
not easy to ascribe to this provision for assign- 
ments any motive worthy of entering into a na- 
tional stipulation. 

But if it be supposed, that all cases in which 
the judicial remedy could not be exhausted within 
the time limited for preferring complaints, were, 
at the expiration of that time, to be subject to our 
cognizance, an adequate view is immediately found 
for this provision. 

5th. If the British commissioners are right in 
their construction of the article, there never was 
a stipulation formed upon more inadmissible or 
more discordant principles. 

According to that construction, the article re- 
fers the claimant in the first instance to the Courts 
of Admiralty of this country in a way so absolute, 
as only to allow him to come to us for an award 
when they shall have finally refused him redress, 
or, having decreed him redress, when it shall have 
been found impracticable, after a thorough trial, 
to enforce that decree. 



[ 353- ] 

But although every thing is thus made to de- 
pend on tlje Courts of Admiralty, and although 
we are to have no jurisdiction until they shall 
have thought proper to determine, there is no 
part of the article which gives to the claimant 
any assurance that these courts shall perform with 
reasonable diligence, or even at all, what is thus 
made to depend on them. 

The case of the Betsey, Furlong, gives me au- 
thority now to say that this implicit confidence 
in the maritime tribunals of Great Britain, (what- 
ever titles they may have to the respect of neutral 
nations,) is so far from distinguishing the seventh 
article of the treaty, that even aftea* a decision by 
the highest Prize Court in the country against the 
claimant, we are authorized to entertain his claim, 
inquire into the merits of it, and grant compen- 
sation against the British government, if by the 
laws of nations, as applied to the case, we shall 
think it right to do so. 

But if the time of decision is thus to be left to 
these Courts of Prize, without any limitation 
whatsoever, why is it that the confidence which 
this implies is not extended to the decision itself? 

If the time of redress is to be entirely with 
them, why is it that the redress itself is not ex- 
elusively submitted to the same discretion ? 

In fact, the most important point to be guarded 
against, and that which it was most natural to an- 
ticipate, was delay : for it was not probable that 
the decrees of so enlightened a tribunal as the 
Lords Commissioners of Appeal, could, in many 



[ 354 ] 

instances, be the subject of well-founded coni- 
pluint ; but it was not at all improbable, tbtit such 
a tribunal should sometimes administer justice 
witli more wisdom than despatch. 

The preamble to the treaty declares the inten- 
tion of the parties to it, to terminate their diti'ef- 
ences, (among which the captures and condem- 
nations recited in the seventh article were far 
from being the least considerable,) in such manner 
as should be best calculated to produce mutual 
satisfaction and good understanding. 

In the spirit of this preamble, and in the nature 
of the thing, it seems just to consider the seventh 
article as a self-etiicient definite arrangement, in- 
trinsically adequate to the accomplishment of the 
object it professes to aim at. 

But the interpretation put upon it by the Bri- 
tish commissioners wholly deprives it of this cha- 
racter, by denying to it all activity and effect un- 
til the Courts of Prize of one of the contracting 
parties shall have done what the article does not 
stipulate that they shall do, either within a speci- 
fied period, or generally within a reasonable time. 

Such an interpretation places the {)romise con- 
tained in the article in the power of the party 
making it, and thus leaves it a promise merely in 
name and form. I cannot form an idea of a 
scheme of redress more ridiculously feeble and 
inoperative. 

On the other hand, if our construction be re- 
ceived, the article will be rendered, not only con- 
sistent in all its parts, and simple and uniform in 



[ 355 1 

its principle, but capable of fulfilling its own 
destination. 

Nor does this construction, as has been sup- 
posed, in any shape, violate the letter of this 
article. 

The words of the agreement are, " that in all 
" such cases where adequate compensation cannot, 
" for whatever reason, be now actually obtained, 
" had and received by the said merchants and 
" others, in the ordinary course of justice, full and 
*' complete compensation will be made," &c. 

That the impracticability of obtaining judicial 
redress, as mentioned in this agreement, could 
only be established by subsequent events — by the 
result of actual experiments then making, or to be 
made, by the claimants — is admitted by us all. 

The judicial remedy was to be tried; and, 
doubtless, it was meant that it should be fairly 
tried. Thus far it is clear ; but it does not follow 
that the duration of the prescribed experiment 
was intended to be indefinite. » 

The negociators might suppose, and evidently 
did suppose, that a term might be fixed, at the 
close of which that experiment should be said to 
be complete, and the inadequacy of the judicial 
remedy sufliciently manifested. 

The efficacy of the arrangement they were 
forming demanded that such a term should be 
agreed on. It could not have the stamp and quali- 
ty of a conclusive stipulation without it. It c(»uld 
not, as a contract, be said to have done any thing 



[ 35(3 ] 

secure or obligatory, until such a limitation was 
inserted in it. 

That limitation is accordingly its prominent 
feature. It is to be seen in its letter, and to be in- 
ferred from every portion of the article, as I have 
already shown. 

Nor is the limitation such a one, as it was im- 
proper for the United States to ask, or Great 
Britain to grant. 

The treaty was framed in November, 1794^ 
when the great mass of the cases were sub judice. 
Our Board was organized in 1796, and, conse- 
quently, the eighteen months assigned for the re- 
ceipt of claims did not expire till April last : so 
that the limitation was not, could not, be much 
short of three years and a half. 

It ouoht to be remembered, too, that the cases 
were not, in general, those of ordinary capture, 
but seizures under the immediate instructions of 
the British government ; instructions of which it 
is ^iijoderate to say, that some were of highly 
questionable legality, while others were plainly 
unlawful. 

It was not to be required (especially in a plan 
whose object was conciliatory and accommoda- 
ting) that the neutral claimant should, under these, 
and perhaps other circumstances of aggravation, 
be compelled, for an indefinite length of time, to 
follow the captors for retribution through all the 
dilatory forms of admiralty proceedings, before 
the responsibility of the British government should 
become an available means of compensation. 



[ 357 ] 

That government, being originally a party to the 
wrong, could ask only a qualified resort to the or- 
dinary remedy in its courts of judicature. 

The foregoing sketch, which has reached a 
size, I did not wish or intend, contains the out- 
line of my reasons on the subjects herein pro- 
posed. 

It is not such as I could desire it to be, for it has 
been hastily made ; but I put it upon our files in 
the confidence that it will be received with 
candour. 

WILLIAM PINKNEY. 

London, June 26fh, 1798. 



EXTRACTED FROM THE MINUTES. 

16th of April, 1803. 

Mr. Pinkney observed that the nature of the 
motion,* and the circumstances connected with 
it, made it proper that he should explain at some 
length the view he had taken of the questions in- 
volved in it. These questions are, 

1st. Whether the Board is competent under 
the treaty and convention, to include in the 
amount of compensation to be awarded to claim- 
ants, if it shall appear to be just and equitable to 
do so, interest during the late suspension 1 

* A motion made by Mr. Gore, that the Commissioners should 
proceed to subscribe the awards ready for their signature. 

46 



[ 353 ] 

2d. Whether it would be just and equitable to 
do so ? 

On the first question, 

It is understood that no doubt is entertained 
as to our power on the subject of interest general- 
ly. The actual doubt is confined to interest from 
July, 1799, when our proceedings were interrupt- 
ed by tlie interference of the f ritish government 
until the resumption of our duties in January or 
February 1802, after the making of the conven- 
tion. It is not easy to ascertain the exact foun- 
dation of this extraordinary doubt ; but so far as 
I am able to collect it from the entry on the Jour- 
nals of the 1 7th of last month, made at the in- 
stj'nce of Dr. Swabey, I understand it to be, that 
the treaty did not contemplate such an incident 
as this interruption of our proceedings, and there- 
fore could not inttmd to authorize the allowance 
of interest during that interruption, and moreover 
that such interest is not the subject of any provi- 
sion in the convention subsequently concluded : 
It is of course supposed to be casus omissus. 

In the examination of this ground, (which Dr. 
Swabey now admits to be correctly stated,) I 
might certainly decline to perplex myself with an 
inquiry whether the framers of the treaty did, or 
did not foresee that our progress might be occa- 
sionally suspended by the occurrence of difficul- 
ties growing out of the novel and complicated ar- 
rangements contained in the sixth and seventh 
articles. It would be sufficient to say, that the 
assumption of the fact, that such a suspension 



[ 359 ] 

could not be, or was not contemplateH at the 
maiving of the treaty, is purely gratuitous: hut I 
cannot forbear to add, that, of all gratuitous as- 
sumptions, it is the least suited to the use that has 
been made of it. as it is not only highly improba- 
ble in itself, but would be of no importance in the 
argument, if it were true. It is, undoubtedly, to 
ascribe to the makers of the treaty a singular and 
most discreditable want of foresight to suppose 
that it never occurred to them, that obstacles 
against which no human wisdom could guard, 
might in the course of this before untried experi- 
ment, temporarily arrest our proceedings with- 
out destroying our functions ; and this supposi- 
tion will appear to be more peculiarly inadmissi- 
ble when it is considered that independent of the 
difficulties in America, by which the commission 
under the sixth article was constantly embarrassed 
so as that it might almost be said to be in a per- 
petual state of suspension, we ourselves had 
scarcely assembled in 1796, before our proceed- 
ings in a whole class of cases of the greatest value 
and extent were entirely suspended ; nor did the 
interruption cease until the British governnn^nt, 
in a way which it ought to be confessed was high- 
ly honourable to it, thought proper to direct its 
commissioners to go on. Soon afterwards (early 
in 1798) we were reduced to a sirriilar predica- 
ment in another class of cases, then comprehend- 
ing the whole, or nearly the whole of the rom- 
pla nts before us. So that, in truth, the suspension 
now in question was the third by which the com- 



[ 360 ] 

mission has been retarded since its first organiza- 
tion. Of such an event, therefore, which this new 
and delicate scheme of adjustment was naturally to 
be expected to produce not once only, but frequent- 
ly, and which accordingly it did produce, from time 
to time, as difficult topics presented themselves 
for discussion, it cannot be allowable to say, that 
it was an incident not in the contemplation of 
the treaty, or of those by whom it was framed. 

But admitting it to be true that the exact case 
of a suspension was not, at the making of the 
treaty, contemplated as a possible incident, does 
it therefore follow, that if a suspension should 
nevertheless occur, every thing connected with it, 
or arising out of it should, upon our resuming our 
proceedings, be considered as casus omissus ? 
One should rather be disposed to think that, be- 
fore we could venture upon such a conclusion, it 
would be our indispensable duty to go a little fur- 
ther and examine, whether the actual provisions 
of the treaty, reasonably interpreted with a proper 
view to their spirit and object, were sufficiently 
ample to reach and embrace the subject so con- 
nected with, or arising out of, the suspension 1 

The 7th article of the treaty is not an arrange- 
ment of detail- It would not have been made, 
if detail had been practicable. Accordingly 
after reciting complaints of loss and damage 
sustained by the citizens or subjects of the con- 
tracting parties, it submits these complaints with- 
out limit or exception to us. It makes us the ex- 
clusive arbiters, not only of the justice of the com- 



[ 361 ] 

plaints^ but also of the amount of compensation 
to be paid in each. 

Of what the items of compensation shall con- 
sist, or by what process it shall be ascertained, it 
does not profess to state. It declares only that 
the compensation shall he full and complete, and 
leaves the rest to this Board, in confidence that it 
will do justice ; and so far is that confidence car- 
ried that, in the cases submitted to us, our 
award is declared to he final and conclusive. 

In such a provision it would be vain to search 
for the traces of any anticipation of the inci- 
dents, to which its execution miofht sfive birth, 
with any view to the modification of the powers 
communicated by it. Such modification was in- 
compatible with its genius and character. Its 
prominent feature, which it would seem to be 
impossible to mistake, is a clear intention to au- 
thorize the tribunal erected by it, whensoever 
and under whatever circumstances it should be 
occupied with the claims committed to it^ to deal 
with those claims according to its own opinion 
honestly formed of their title to redress, and the 
proper measure of that redress. Whether this 
Gonimission should endure three years or eight — 
whether it should proceed without impediment, 
or at times be prevented from proceeding at all, 
were points which the treaty could not settle ; but 
it could determine, and it has determined, in the 
most explicit manner, that, when allowed to ex- 
ert our powers, we should find in them no defi- 
ciency in regard to the justice of any claim regu- 



[ 362 ] 

larly before us, or the amount of the sum to be 
awarded. On these two points, therefo'*e, viz. 
the justice of a claim, within our cognizance, 
and the amount of the conipensafion, so emphati- 
cally and completely referred to us by words of the 
widest extent and most comprehensive import, 
evidently in unison with the whole plan of the 
provision itself, there can be no cafrns omissus 
in the treaty. 

Indeed the correctness of this conclusion is in 
effect admitted by those who deny it. They ad- 
mit that we are empowered to grant interest both 
before the interval of the suspension and since. 
Whence do we derive that power ^ Certainly not 
from any words in the treaty, taking notice of in- 
terest eo nomine, or giving a defined or modified 
authority on the subject of it. We derive it sim- 
ply from those words in the treaty, which submit 
the amount of the compensation to our decision. 

The conceded power, therefore to give inter- 
est on either side of the suspension, rests upon 
this, that such a power is necessary to enable us 
to settle the amount of compensation according 
to our notions of justice and equity. But is not 
this reason, undoubtedly the only one that can be 
assigned in favour of the power to grant interest 
before and since the suspension, broader than the 
power itself; and does it not discredit and falsify 
the pretended exception ! In other words, does 
it not, in all fair reasoning incontrovertibly prove 
that we have the power to grant interest during 
the suspension as well as before and after. 



[ 363 ] 

Such a power being just as necessary, in the 
one case as in thf" other, " to enable us to set- 
" tie the amount of compensation according to 
" our notions of justice and equity ?"' It is quite 
impossible to avoid the force of this argument 
otherwise than by showing that there is an ex- 
ception of some sort, either in the treaty or the 
convention, in regard to this obnoxious interest, 
an attempt which would presuppose an abandon- 
ment of the ground of casus omissus in favour 
of another, still less capable, if that were possi- 
ble, of being defended In the treaty, I think I 
have already shown that no such exception exists; 
and we shall soon see that it is not to be found 
in the conventiofi, whose provisi07is it is now time 
to examine. 

The convention directs us to proceed in the exe- 
cution of our duties, according to the provisions 
of the seventh article of the treaty; except only 
that we are to make our awards payable in three 
equal annual instalments. Subject to this ex- 
ception, therefore, our powers continue to be at 
least as ample as under the treaty. 

The convention may be considered as recom- 
municating in 1802, by reference to the seventh 
article of the treaty, the powers originally com- 
municated by that article in 1 794, with the single 
modification above mentioned. We have, of 
course, the same power now, as formerly, con- 
clusively to fix the amount of compensation in 
claims which we have decided to be just. But 
we not only have that power (in which it is admit- 



[ 364 ] 

1(3(1 that a power to give interest is include(i) un- 
impaired : — we have it freed by the convention 
from Dr. Swabey's objection, even if that objec- 
tion was a sound one, as applied to the treaty on- 
ly. The objection, as applied to the treaty, does 
not rely upon the inadequacy of the language of 
it to give the power in question, but from a loose 
inference drawn from a loose speculation, that 
such an incident as the suspension was not con- 
templated by it. Can this objection be transfer- 
red from the treaty to the convention \ Manifestly 
not. The convention was posterior to the sus- 
pension, recites it, and removes it. The suspen- 
sion was consequently in the contemplation of 
that instrument. To whatsoever objection, there- 
fore, the original communication of the power in 
question may have been liable, on the mere sup- 
position that such an event as the suspension was 
not then in view, the recommunication of this 
power, since the suspension, and with particular 
reference to it, must be free from that objection. 
In a word, there is not in my judgment, even the ap- 
pearance of a reason for questioning the authori- 
ty of the Board on this occasion. 

On the second question. 

The power of the Board to grant the interest 
in question, being thus, as I think, obvious, I will 
now say a very few words on the matter of equity. 
I have not been able to discover upon what pre- 
cise grounds it is supposed, that in this view, in- 
terest during the suspension is distinguishable 
from interest before and since. It cannot be upon 



[ 365 ] 

the naked foundation of a temporary want of ca- 
pacity in this Board, from July 1799 until 1802, 
to relieve the claimants : for, independent of the 
gross absurdity of allowing to such a fact, singly 
taken, so important an influence on the mea- 
sure of the relief, what shall we say of interest 
from 1793 to 1796, when this Board was not 
even in existence ? If the mere cessation, for a 
season, of our capacity to act under the treaty 
renders it unjust to allow interest during the pe- 
riod of that cessation, surely the argument is in- 
finitely stronger against the allowance of interest 
during a period when we had no official capacity 
whatever ; and yet it never occurred to any of us, 
or to either of the high contracting parties, that 
the interest before 1796 was inequitable. A no- 
tion must therefore be entertained that, in regard 
to this suspension, some peculiar considerations 
exist by which interest, during the interval occu- 
pied by it, ought to be held to be affected. What 
these considerations are, I am left to conjecture, 
since they have not been explained. 

It is perhaps imagined that if a claimant should 
receive such interest from the British government, 
the former would be placed in a better situation, 
and the latter in a worse, than if the suspension 
had not happened. If this should appear to be 
true, I agree that it would be of great weight. 
It is, however, so totally erroneous as to be the 
exact reverse of the truth ; the fact is, that the 
claimant will be a loser, and the British govern- 
ment a gainer, by the suspension, even after this 

47 



[ 366 ] 

interest shall have been paid and received. A 
very short examination will make this apparent. 
As to the claimant. If the suspension had not 
taken place, his complaint, supposing it to be 
ready for decision, would have been decided by 
the Board, so as that an award would have been 
made in his favour, payable in the spring of 1800, 
for principal and interest then due. He loses, of 
course, by the suspension, the use from the spring 
of 1800, not only of his principal, but of such in- 
terest upon that principal, as, but for the suspen- 
sion, would at that time have come to his hands. 
To put him, therefore, in any thing like so good a 
situation as he would have been in if the suspen- 
sion had not occurred, it would be necessary not 
only to give him interest upon his principal during 
and after the siispension, as we propose to do, but 
also to give him interest from the spring of 1800 
upon the amount of such interest, as the suspen- 
sion prevented him from then receiving. A claim- 
ant, whose case was ready for decision, will con- 
seqently be so far from being a gainer by the sus- 
pension, if the interest in question be allowed him, 
that even after the receipt of that interest, he will 
still have sustained a considerable loss, for which 
it is not intended by any member of this Board to 
give him any compensation at all. In addition to 
this, it is to be considered, that the claimants 
being merchants, are not adequately compensat- 
ed for the privation of what ought to have formed 
a part of their capital, at a time when commer- 
cial capitai was more than usually active, by a re- 



[ 367 ] 

tribution granted with a view to the mere rate of 
interest. 

The foregoing observations, it is to be admit- 
ted, apply solely to claimants whose cases, in re- 
gard to the judicial remedy, were ready for our de- 
cision at the commencement of the suspension, or 
would have become so in the course of it; and 
they apply undoubtedly with less or greater force, 
according as the time when the ca.se was, or 
would have been ready, shall be taken to have 
been late or early. As to the other claimants, 
(not many in number,) they were certainly not 
losers by the suspension ; for it produced no ef- 
fect at all upon their claims. But it must at the 
same time be seen that, for precisely the same 
reason. Great Britain could not be, as to such 
claims, in the sliirhtest degree irijuredby the sus- 
pension : and indeed it is understood to be ad- 
mitted that, on the footing of equity, the suspen- 
sion does not affect these claims in the same 
manner as it is supposed to affect the others. 

Let us now see how the account stands on the 
part of the British government. 

The gain of the British government may safe- 
ly be affirmed to be at least co-extensive with the 
claimants' loss. In cases ready for decision, or 
that would have become so during the suspension, 
it has already been shown that it has enjoyed the 
use of the claimants' principal bif reason of the 
suspension only : and if this were the whole bene- 
fit, it would seem to be obvious that the suspen- 
sion rather furnishes an argument in favour of the 



[ 368 ] 

payment of interest than the contrary. But the 
suspension has also given it the use of the claim- 
ants' interest due at the time of it, which interest 
must have been paid in or about the year 1800, 
and upon which, if it had been paid, the British 
government would now be paying, as well as upon 
the principal, an annuity to some public creditor. 
The whole foundation of the argument, then, 
against the equity of granting against the British 
government interest, during the suspension on the 
claimants' principal, is, properly understood, nei- 
ther more nor less than this, that during that in- 
terval it has had the use of both principal and 
interest, so far as interest had then accrued. 
There cannot be a better foundation on which to 
grant this interest. 

To what has been said it ought to be added 
thai the British government has been benefited 
by the suspension to a considerable amount in 
another respect. Large sums have been recover- 
ed by the claimants from the captors during the 
suspension, which might otherwise have been 
wholly or in a great measure lost. The effect 
has been greatly to lessen the aggregate of the 
sums to be awarded. Upon the whole, the sus- 
pension is not an event by which the British go- 
vernment has suffered, or can suffer, so as to create 
an equity in its favour on this occasion. It has, 
on the contrary, been, and will continue to be, 
advantageous to it, and prejudicial to the claim- 
ants, let this question be disposed of as it may. 



[ 369 ] 

In what other view this subject can be consider- 
ed, I am entirely at a loss to conjecture. We do 
not, I take it for granted, think ourselves at liber- 
ty to go into an endless and odious inquiry by whose 
fault, if by any fault, the suspension was produced. 
Nor do we, I also take for granted, imagine that, 
even if such an inquiry could now lead to any result, 
the utility of that result, as it might be made to 
bear upon the question before us, would make 
amends for the time and attention employed upon 
it. The convention is either a dead letter, or it 
has put such an offensive discussion for ever at 
rest both here and elsewhere : and, if it had not, 
where are our means of agitating it, with any 
hope of arriving at a correct conclusion ? To en- 
deavour at this late hour to influence either the 
sense or the practical operation of the conven- 
tion, by an arbitrary and invidious imputation of 
an antecedent blame avoided, and therefore re- 
jected, by the convention itself, and which, if not so 
rejected, it would now be impossible to fix, would 
be so extraordinary and monstrous an irregulari- 
ty, that I am entirely confident it has not been 
thought of. The convention has told us all that 
it was intended we should know on this subject, 
and all that either of the contracting parties can 
at this time be free to insist upon, viz. that the 
suspension was produced by the immediate act 
of the British government, in consequence of difli- 
culties having arisen in America, under the sixth 
article of the treaty. 



( 370 ) 

With this character conclusively ^iven to that 
transaction by the convention, it would be wt»rse 
than idle to attempt to give it another, in which 
the presumed misconduct of either of the two 
governments should be an ingredient. But give 
to it what character you will, and ascribe it to 
what fault you may, still, if the situation of the 
British government, in reference to the claims 
depending under the seventh article, is no worse 
than it would have been had not the suspension 
happened, it is inconceivable in what way, or upon 
what intelligible principles, it can give an equity 
against those to whom the suspension or its con- 
sequences cannot be attributed, to whom it has 
been so far from being advantageous, that the 
most liberal compensation which they are likely 
to procure will not repair the injury they have 
sustained by it. 

I will make but one observation more on this 
subject. If we should enter into an inquiry 
whether either, and which of the two governments, 
was in fault as to the suspension ; if we should 
even be disposed to think, as most certainly some 
of us would not, that the American government 
was so in fault ; if we should go on to infer that 
therefore the British government was not to pay 
interest during the suspension to American claim- 
ants, there would still remain a most embarrassing 
question which we should find it difficult to set- 
tle, i. e. whether the American government should 
pay interest during the suspension to British 
claimants ? 



[ 371 ] 

To give to British claimants a larger measure 
of redress in this respect than we give to Au- ri- 
can claimants, upon a vague charge of miscon- 
duct against one of the high contra ting parties, 
for which no countenance is found in the contract 
itself, would be to set up a distinction which the 
convention does not acknowledge, but disclaims; 
which the contracting party, outraged by the ac- 
cusation, would hold, and justly hold, to be inde- 
cent and arrogant ; and which, as regards the in- 
nocent complainants, would be too iniquitous for 
any honest man to lend himself to. 

On the other hand, if, withheld by these or other 
considerations, we should forbear to make the 
distinction, what will have become of our princi- 
ple, or our title to consistency ? This is a dilem- 
ma on which I will not enlarge, but on which it 
mig^ht be well to reflect. It shows the utter inad- 
missibility of the objection which, if listened to 
and acted upon, would produce it. 

Mr. Pinkney concludes by seconding the mo- 
tion ; but at the request of Mr. Trumbull, it was 
postponed for a few days, and on the 30th of 
April, the Board proceeded to make awards on 
the principle contended for by iVir. Gore and 
Mr. Pinkney. 



[ 372 ] 
N°- II. 

MEMORIAL ON THE RULE OF THE WAR OF 1756. 



I'd the. President of the United States, and the Senate and House 
of Representatives of the United States of America, in Con- 
gress assembled : 

THE MEMORIAL OP THE MERCHANTS AND TRADERS OF THE CITY 
OF BALTIMORE. 

Your memorialists beg leave respectfully to submit to your 
consideration the following statement and reflections, produced 
b}' the situation of our public affairs, in a high degree critical and 
perilous, and peculiarly affecting the commerce of their country. 
Ih the early part of the late war between Great Britain and 
France, the former undertook to prohibit neutral nations from all 
trade whatsoever with the colonies of the latter. This exorbi- 
tant pretension was not long persisted in. It was soon qualified 
in favour of a direct trade between the United and these colonies, 
and some years afterwards was further relaxed in favour of Eu- 
ropean neutrals. The United States being thus admitted, by the 
express acknowledgment of Great Britain, to a direct trade, with- 
out limit, between their own ports and the colonies of the opposite 
belligerents, another trade naturally and necessarily grew out of it, 
or rather formed one of its principal objects and inducements. 
The surplus colonial produce, beyond our own consumption, im- 
ported here, was to be carried elsewhere for a market ; and it 
was accordingly carried to Europe, sometimes by the original im- 
porter, sometimes by other American merchants, either in the ves- 
sels in which the importation was made, or in others. In the 
course of this traffic, it was understood to be the sense of Great 
Britain, and was explicitly declared by her courts of prize, that, 
although she had not expressly allowed to the merchants of the 



[ 373 1 

United States, by the letter of her relaxations, and immediate 
trade between the colonies of her enemies and the markets of 
Europe, a circuitous trade to Europe, in the production of these 
colonies, was unexceptionable ; and that nothing more was neces- 
sary to make it so, than that the continuity of the voyage should 
be broken by an entry, and payment of duties, and the landing of 
the colonial cargo in the United States. During the greater part 
of the late war, and the first years of the present, this trnde was 
securely prosecuted by our merchants, in the form which Great 
Britain had thus thought fit to give to it. 

The modification of a traffic, in itself entitled to be free, was 
submitted to, on our part, without repining, because it presented a 
clear and definite rule of conduct, which, although unauthorized in 
the light of a restriction, was not greatly inconvenient in its prac- 
tical operation ; and your memorialists entertained a confident 
hope, that, while on the one hand, they sought no change of sj'stem 
by which the assumption of Great Britain to impose. terms, how- 
ever mild in their character and effect, upon their lawful commerce, 
should be repelled ; on the other hand, it would not be desired, 
that the state of things which Great Britain had herself prescribed, 
and which use and habit had rendered familiar, and intelligi- 
ble to all, should be disturbed by oppressive innovations; far less 
that these innovations should, by a tyrannical retrospection, be 
made to justify the seizure and confiscation of their property, 
committed to the high seas, under the protection of the existing 
rule, and without warning of the intended change. 

In this their just hope, your memorialists have been fatally dis- 
appointed. Their vessels and effects, to a large amount, have 
lately been captured by the commissioned cruizers of Great 
Britain, upon the foundation of new principles, suddenly invented, 
and applied to this habitual traffic, and suggested, and promul- 
gated, for the first time, by sentences of condemnation ; by which, 
unavoidable ignorance has been considered as criminal, and an 
honourable confidence in the justice of a friendly nation, pursued 
with penalty and forfeiture. 

Your memorialists are in no situation to state the. precise nature 
of the rules to which their most important interests have thus « 
been sacrificed : and it is not the least of their complaints against 

48 



[ 374 ] * 

them, that they are undefined, and undefinable, equivocal in their 
form, and the fit instruments of oppression by reason of their 
ambiguity. 

Your memorialists know that the circumstances which have 
heretofore been admitted to give legality to their trade, in colo- 
nial productions, with their European friends, protect it no longer- 
But they have not yet been told, and are not soon likely to learn, 
what other circumstances will be suffered to produce that con- 
sequence. It is supposed to have been judicially declared, in 
general, that a voyage undertaken for the purpose of bringing 
into the United States the produce of the belligerent colonies, 
purchased by American citizens, shall, if it appears to be in- 
tended that this produce shall ultimately go on to Europe, and 
an attempt is actually made to re-export and send it thither, be 
considered, on account of that intention, as a direct voyage to 
Europe, and therefore illegal, notwithstanding any temporary in- 
terruption or termination of it in the United States. 

Your memorialists will not here stop to inquire upon what 
grounds of law or reason the same act is held to be legal when 
commenced with one intention, and illegal when undertaken with 
another. But ihey object, in the strongest terms, against this 
new criterion of legality, because of its inevitable tendency to in- 
justice, because of its peculiar capacity to embarrass with sei- 
zure, and to ruin with confiscation, the whole of our trade with 
Europe in the surplus of our colonial importations. 

The inquiry which the late system indicated was short and 
simple, and precluded error on all sides ; but the new refinement 
substitutes in its place a vast field of speculation, overshadowed 
with doubt and uncertainty, and of which the faint and shifting 
boundaries can never be distinctly known. 

Intention, as to the object of our colonial voyages, may be in- 
ferred from numerous circumstances, more or less conclusive. 
To anticipate them all is obviously impracticable ; and of course 
to guard against the inference, in this respect, which British cap- 
tors and British courts may be disposed to draw, will be impossi- 
ble. Our property is therefore menaced by a great and formida- 
' ble danger, which there are no means of eluding ; for, even if 
it should chance to escape the condemnation which this pernicious 



[ 375 ] 

novelty prepares for it, the wound inflicted upon our commerce 
by arrestations on suspicion, and detentions for adjudication, will 
be deep and fatal. The efforts of our merchants will be check- 
ed and discouraged by more than ordinary inquisitions ; our best 
concerted enterprises broken up, without the hopje of retribution, 
or even reimbursement for actual costs, upon the footing of an 
intention arbitrarily imputed ; and the only alternative which will 
be presented to our choice will be, either to refrain at once from a 
traffic which enriches our country while it benefits ourselves, or to 
see it wasted, and in the end destroyed, by a noxious system of 
maritime depredation. 

Your memorialists are the more alarmed by this departure 
from a plain and settled rule, in favour of a pliant and myste- 
rious doctrine, so eminently suited to the accomplishment of the 
worst purposes of commercial jealousy, because the injurious and 
vexatious qualities of the substituted rule must have been known 
to those who introduced it, and because, if these qualities did not 
recommend it to adoption, it is difficult to conceive why it was 
adopted at ail. If it is meant that our trade to Europe shall, 
notwithstanding this rule, be allowed to continue without being 
subjected to extraordinary difficulties, operating as actual reduc- 
tions and mischievous restraints ; if it is meant that a few facts, 
known and comprehended, shall, as heretofore, form a standard 
by which the lawfulness of our European voyages may be une- 
quivocally ascertained ; if a wide range has not been designed 
for the inquiry after intention, and a real effect expected from that 
inquiry ; if, in a word, the late regulation has not been supposed 
to be capable of bearing on our trade in a manner new and im- 
portant, we should hardly have now been called upon to remon- 
strate against a change. It is not pretended that the rule now en- 
forced against us, is levelled against any practice to which we 
may be supposed to have lent ourselves, of disguising as our own 
the property of the enemies of Great Britain. That is not its 
object ; and if it were, we are enabled to assert, solemnly and con- 
fidently, that our conduct has afforded no ground for the injuri- 
ous suspicion which such an object would imply. The view is 
professedly to regulate and effect our traffic in articles fairly pur- 
chased by us from others ; and if the consequences to that traffic 



[ 376 ] 

were not intended to be serious, and extensive, and permanent, 
your memorialists search in vain for the motive by which a state, 
in amity with our own, and moreover connected with it by the 
ties of common interest, to which many considerations seem to 
give peculiar strength, has been induced to indulge in a paroxysm 
of ca()rici'>us aggression upon our rights, by which it dishonours 
itself without promoting any of those great interests for which 
an enlightened nation may fairly be solicitous, and which only 
a steady regard for justice can ultimately secure. When we see 
a powerful state, in possession of a commerce of which the world 
affords no examples, endeavouring to interpolate into the laws of 
nations casuistical niceties and wayward distinctions, which for- 
bid a citizen of another independent commercial country, to ex- 
port from that country what unquestionably belongs to him, only 
because he imported it himself, and yet allow him to sell a right 
of exporting it to another ; which prohibit an end because it 
arises out of one intention, but permit it when it arises out of two ; 
which, dividing an act into stages, search into the mind for a cor- 
respondent division of it in the contemplation of its author, and 
determine its innocence or criminality accordingly ; which, not 
denying that the property acquired in an authorized traffic, by 
neutral nations from belligerents, may become incorporated into 
the national stock, and under the shelter of its neutral character, 
thus superinduced, and still preserved, be afterwards transported 
to every quarter of the globe, reject the only epoch which can 
distinctly mark that incorporation, and point out none other in 
its place ; which, proposing to fix with accuracy and precision 
the line of demarcation, beyond which neutrals are trespassers 
upon the wide domain of belligerent rights, involves every thing 
in darkness and confusion : there can be but one opinion as to 
the purpose which all this is to accomplish. 

Your memorialists have endeavoured, with all that attention 
which their natural anxiety was calculated to produce, to ascer- 
tain the various shapes which the doctrine in question is likely to 
assume in practice, but they have found it impossible to conjecture 
in what way, consistently with this doctrine, the excess of our im- 
, ports from the belligerent colonies can find its way to foreign mar- 
kets. The landing of the cargo, and a compliance with all the 



[ 377 ] 

forms and sanctidns, upon which our revenue depends, will not so 
terminate the voyage from the colonies, as that the articles may 
be immediately re-exported to Europe by the original importer. 
But if they cannot be exported immediately, what lapse of time 
will give them a title to be f.ent abroad, and if not by the origi- 
nal importer, how is he to devolve upon another a power which 
he has not himself? And if by a sale he can communicate the 
power, by what evidence is the transfer to be manifested, so as 
to furnish an answer to the ready accusation of fraud and eva- 
sion ? In proportion as this doctrine has developed itself, it has 
been found necessary to invent plausible qualifications, tending to 
conceal its real character from observation. It has accordingly 
been surmised, that, notwithstanding the obstacles which it pro- 
vides against the re-exportation of a colonial cargo by the im- 
porter, such a re-exportation may, perhaps, be lawful. Attempts 
on his part to sell in the United States, without effect, (wliich 
must often happen,) may, it is supposed, be sufficient to save 
him from the peril of the rule. But, admitting it to be certain, 
instead of being barely possible, that these attempts would form 
any thing like security against final condemnation, it is still most 
material to ask, how ihey are to afford protection against seizure ? 
By what documents they can be proved to the satisfaction of 
those to whom interest suggests doubts, and whom impunity en- 
courages to act upon them ? The formal transactions of the 
custom-house once deserted as a criterion, the cargo must be fol- 
lowed, through private transfers, into the ware-houses of indivi- 
dual merchants ; and when proofs have been prepared, with the 
utmost regularity, to establish these transfers, or the other facts 
which may be deemed to be equivalent, they are still liable to be 
suspected, and will be suspected, as fictitious and colourable, and 
capture will be the consequence. For the loss and damage which 
capture brings along with it, British courts of prize grant no ade- 
quate indemnity. Redress to any extent is difficuh ; to a compe- 
tent extent, impossible. And even the costs which an iniquitous 
seizure compels a neutral merchant to incur, in the defence of 
his violated rights, before their own tribunals, are seldom de- 
creed, and never paid. 

Your memorialists have thus far complained only of the recent 
abandonment, by Great Britain, of a known rule, by which the 



[ 378 ] 

oppressive character of an important principle of her maritime 
code has heretofore bf^en greatly mitigated. But they now beg 
leave to enter their solemn protest against the principle itself, as 
an arbitrary and unfounded pretension, by which the just liberty 
of neutral commerce is impaired and abridged, and may be whol- 
ly destroyed. 

The reasons upon which Great Britain assumes to herself a 
right to interdict to the independent nations of the earth a com- 
mercial intercourse with the colonies of her enemies, (out of the 
relaxation of which pretended right has arisen the distinction 
in her courts between an American trade from the colonies to 
the United States, and from the same colonies to Europe) will,, 
we are confidently persuaded, be repelled with firmness and ef- 
fect by our government. 

It is said by the advocates of this high belligerent claim, that 
neutral nations have no right to carry on with either of the par- 
ties ai war any other trade than ihey have actually enjoyed in 
time of peace. This position forms the basis upon which Cireat 
Britain has, heretofore, rested her supposed title to prevent alto- 
gether, or to modify at her discretion, the interposition of neu- 
trals in the colony trade of her adversaries. 

But, if we are called upon to admit the truth of this position, 
it seems reasonable that the converse of it should also be ad- 
mitted. That war should not be allowed to disturb the custo- 
mary trade of neutrals in peace ; that the peace-traffic should, in 
every view, be held to be the measure of the war-traffic ; and 
that, as on the one hand there can be no enlargement, on the other 
there shall be no restriction. What, however, is the fact ? The 
first moment of hostilities annihilates the commerce of the na- 
tions at peace, in articles deemed contraband of war ; the pro- 
perty of the belligerents can no longer be carried in neutral ships; 
they are subject to visitation on the high seas ; to harassing and 
vexatious search ; to "detention for judicial inquiry ; and to the 
peril of unjust confiscation : they are shut out from their usual 
markets, not only by military enterprises against particular places, 
carried on with a view to their reduction, but by a vast system of - 
blockade, affecting and closing up the entire ports of a whole 
nation : such have been the recent effects of an European war 
upon the trade of this neutral country ; and the prospect of the 



[ 379 ] 

future affords no consolation for the past. The triumphant fleets 
of one of the contending powers cover the ocean ; the navy other 
enemies has fallen before her ; the communication by sea with 
France, and Spain, and Holland, seems to depend upon her will, 
and she asserts a right to destroy it at her pleasure: she forbids 
us from transporting, in our vessels, as in peace we could, the 
property of her enemies ; enforces against us a rigorous list of 
contraband ; dams up the great channels of our ordinary trade ; 
abridges, trammels, and obstructs what she permits us to prose- 
cute, and then refers us to our accustomed traffi,c in time of peace, 
for the criterion of our commercial rights, in order to justify the 
consummation of that ruin with which our lawful commerce is 
menaced by her maxims and her conduct. 

This principle, therefore, cannot be a sound one ; it wants uni- 
formity and consistency ; is partial, unequal, and delusive : it 
makes every thing bend to the rights of war, while it affects to 
look back to, and to recognize, the state of things in peace, as 
the foundation and the measure of the rights of neutrals. Pro- 
fessing to respect the established and habitual trade of the na- 
tions at peace, it affords no shadow of security for any part of 
it : professing to be an equitable standard for the ascertainment 
of neutral rights, it deprives them of all body and substance, and 
leaves them only a plausible and unreal appearance of magnitude 
and importance: it delivers them over, in a word, to the mercy 
of the states at war, as objects of legitimate hostility ; and while 
it seems to define, does, in fact, extinguish them. Such is the 
faithful picture of the theory, and practical operation of this 
doctrine. 

But, independent of the considerations thus arising out of the 
immediate interference of belligerent rights and belligerent con- 
duct with the freedom of neutral trade, by which the fallacy of 
the appeal to the precise state of our peace-trade, as limiting the 
nature and extent of our trade in war, is sufficiently manifested, 
there are other considerations which satisfactorily prove the inad- 
missibility of this principle. 

It is impossible that war amoijg the primary powers of Eu- 
rope should not, in an endless variety of shapes, materially affect 
the whole civilized world. Its op«;ration upon the prices of la- 



[ 380 ] 

hour and commodities ; upon the value of money ; upon ex- 
change; upon the rates of freight and insurJince, is great and im- 
portant. But it does much more than all this. It imposes upon 
commerce in the gross, and in its details, a new character; gives 
to it a new direction, and places it upon new foundations. It 
abolishes one class of demands ; creates, or revives others ; and 
diminishes, or augments the rest. And, while the wants of man- 
kind are infinitely varied by its powerful agency, both in ob- 
ject and degree, the modes and sources of supply, and the means 
of payment are infinitely varied also. 

To prescribe to neutral trade thus irresistibly influenced, and 
changed, and moulded by this imperious agent, a fixed and unal- 
terable station, would be to say that it shall remain the same, 
when not to vary is impossible ; and to require, since change is 
unavoidable, that it shall submit to the ruinous retrenchments 
and modifications which war produces, and yet refrain from 
indemnifying itself by the fair advantages which war offers to it 
as an equivalent, cannot be warranted by any rule of reason or 
equity, or by any law to which the great community of nations 
owes respect and obedience. 

When we examine the conduct of the maritime powers of 
Europe, in all the wars in which they have been engaged for 
upwards of a century, we find that each of them has, occasion- 
ally, departed from its scheme of colonial monopoly ; relaxed 
its navigation laws, and otherwise admitted neutrals, for a longer 
or shorter space, as circumstances required, to modes of trade 
from which tliey were generally excluded. 

This universal practice, this constant and invariable usage, 
for a long series of years, would seem to have established among 
the European states a sort of customary law upon the subject of 
it, from which no single power could be at liberty to depart, in 
search of a questionable theory at variance with it. Great 
Britain is known to suspend, in war and on account of war, her 
famous act of navigation, to which she is supposed to owe her 
maritime greatness, and which, as the palladium of her power, 
she holds inviolable in peace ; and her colonies are frequently 
thrown open, and neutrals invited to supply them, when she can- 
not supply them herself. 9he makes treaties in the midst of 



[ 381 ] 

war, (she made such a treaty with us) by which neutrals are 
received intt> a participation of an extensive trnffic, to whirli be- 
tbre they had no title. And can she be suffered to object, that 
the same, or analogous acts are unlawful in her enemies ; or 
that, when neutrals avail themselves of similar concessions made 
by her opponents, they are liable to punishment, as for a crimi- 
nal intrusion into an irregular and prohibited comn.erce ? 

The weight of this consideration has been felt by the advo- 
cates of this doctrine, and it has, accordingly, been attempted to 
evade it by a distinction, which admits the legality of all such 
relaxations in war, of the general, commercial or colonial sys- 
tems of the belligerents, as do not arise out of the predominance 
of the enemy's force, or out of any necessity resulting from it. 

It is apparent, however, that such relaxations, whether dic- 
tated by the actual ascertained predominance of the enemy's 
force, or not, do arise out of the state of war, and are almost 
universally compelled, and produced by it ; that they are in- 
tended as reliefs against evils which war has brought along 
with it, and the opposite belligerent has just as much right to 
insist, that these evils shall not be removed by neutral aid, or in- 
terposition, as if they were produced by the general preponde- 
rance of her own power, upon the land or upon the sea, or by 
the general success of her arms. In the one case, as complt-tely 
as in the other, the interference of the neutral lightens the pres- 
sure of war ; increases the capacity to bear its calamities, or the 
power to inflict them; and supplies the means of comfort imd of 
strength. In both cases, the practical effect is the same, and the 
legal consequences should be the same also. 

But whence are we to derive the conclusion of the fact upon 
which this extraordinary distinction is made to turn } How are 
we to determine with precision and certainty, the exact cause 
which opens to us the ports of a nation at war — to analyze the 
various circumstances, of which, perhaps, the concession may be 
the combined effect ; and to assign to each the just portion of 
influence to which it has a claim ? How easy it is to deceive 
ourselves on a subject of this kind, Great Britain will herself 
instruct us, by a recent example. Her courts of prize have in- 
sisted that, during the war which ended in the peace of Amiens. 

49 



[ 382 ] 

France was compelled to open the ports of her colonies, by a 
necessity created and imposed by the naval prowess of her ene- 
mies. And yet these ports were opened in February, 1793, 
when France and her maritime adversaries had not measured 
their strength in a sinale conflict ; when no naval enterprize 
had been undertaken by the latter, far less crowned with suc- 
cess ; when the hsts were not even entered, and when the supe- 
riority afterwards acquired, by Great Britain in particular, was 
yet a problem ; when the spirit of the French nation and govern- 
ment was lifted up to an unexampled height, by the enthusiasm 
of the da\, and by the splendid achievements by which their 
armies had recently conquered Savoy, the county of Nice,. 
Worms, and other places on the Rhme, the Austrian Low Coun- 
tries, and Liege. It would seem to be next to impossible to 
contend that a concession made by France to neutrals, on the 
subject of her colony trade, at such a period of exultation and 
triumph, was " compelled by the prevalence of British arras," 
that it was *' the fruit of British victories," or the result of 
" British conquest," that it arose out of the predominance of the 
enemy's force, that it was produced by " that sort of necessity 
which springs from the impossibility of otherwise providing 
against the urgency of distress inflicted by the hand of a supe- 
rior enemy," and that " it was a signal of defeat and depression." 
It would seem to be impossible to say of a traffic so derived, 
" that it could obtain or did obtain, by no other title than the 
success of the one belligerent against the other, and at the ex- 
pense of that very belligerent under whose success the neutral 
sets up his title." Yet all these things have been said, and so- 
lemnly maintainf^d, and have even been made the foundation of 
acts, by which the property of our citizens has been wrested from 
their hands. It cannot be belipved that the laws of nations have 
entrusted to a belligerent the power of harassing the trade, and 
confiscating the ships and merchandise of peaceable and friendly 
nations, upon grounds so vague, so indefinite, and equivocal. 
Of all law, certainty is the best feature ; and no rule can be 
otherwise than unjust and despotic, of which the sense and the 
application are and must be ambiguous. A siege or blockade 
presents an intelligible standard, by which it may always be 



[ 383 ] 

known, that no lawful trade can be carried on with the places 
aeainst which either has been instituted. But the suggestions 
upon whichr this new belligerent encroachment, having all the 
effect of a siege or blockade, is founded, are absolutely incapable 
of a distinct form, either for the purpose of warning to neutrals, 
or as the basis of a judicial sentence. The neutral merchant 
finds that, in fact, the colonial ports of the parties to the war are 
thrown open to him by the powers to which they belong ; and 
he sees no hostile squadrons to shut them against him. Is he 
to pause, before he ventures to exercise his natural right to 
trade with those who are willing to trade with him, until he 
has inquired and determined why these ports have been thus 
made free to receive him ? To such a complicated and deli- 
cate discussion, n<' nation has a right to call him. It is enough 
that an actual blockade can be set on foot to close these ports, 
and that they may be made the objects of direct efforts, for 
conquest or occlusion, if the enemy's force is, in truth, so de- 
cidedly predominant as it is pretended to be. And if it is 
not predominant to that point, and to that extent, there can be 
no cause for ascribing to it an effect to which it is physically 
incompetent, or for allowing it to do that constructively, which 
it cannot do, and has not done, actually. The pernicious quali- 
ties of this doctrine are enhanced and aggravated, as from its 
nature might be expected, by the fact, that Great Britain gives 
no notice of the time when, or the circumstances in which she 
means to apply and enforce it. Her orders of the 6th of No- 
vember, 1793, b) which the seas were swept of our vessels and 
effects, were, for the first time, announced by the ships of war 
and privateers by which they were carried into execution. The 
late decisions of her courts, which are in the true spirit of this 
doctrine, and are calculated to restore it, in practice, to that high 
tone of severity which milder decisions had almost concealed 
from the world, came upon us by surprize ; and the captures of 
which the Dutch complained in the seven years' war, were pre- 
ceded by no warning. Thus is this principle most rapacious 
and oppressive in all its bearings. Harsh and mysterious in 
itself, it has always been and ever must be used to betray neutral 
merchants into a trade supposed to be lawful, and then to give 



[ 384 ] 

them up to pillage and to ruin. Compared with this priitciple, 
which violence and artifice may equally claim for their own, the 
expli'ded doctrine of constructive blockade, by which belligerents 
for a time insulted and plundered the states at peace, is innocent 
and harmless. That doctrine hnd something of certainty belong- 
ing to it, and made safety ;it least possible. But there can be no 
security while a malignant and deceitful principle like this hangs 
over us. It is just what the belligerent chooses to make it — 
lurking, unseen, and unfelt — or visible, active, and noxious. It 
may come abroad when least expected; and the moment of con- 
fidence may be the moment of destruction. It may sleep for a 
time, but no man knows when it is to awake, to shed its baleful 
influence upon the commerce of the world. It clothes itself from 
season to season, in what are called relaxations, but again, with- 
out any previous intimation to the deluded citizens of the neutral 
powers, these relaxations are suddenly laid aside, either in the 
whole or in part, and the work of confiscation commences. 
Nearly ten months of the late war had elapsed before it announced 
itself at all, and when it did so, it was in its most formidable 
shape, and in its fullest power and expansion. In a few weeks it 
was seen to lose more than half its substance and character, and 
before the conclusion of the war was scarcely perceptible With 
the .pening of the present war it re-appeared in its mildest form, 
which it is again abandoning for another, more consonant to its 
spirit. Such are its capricious fluctuations, that no commercial 
undertaking which it can in any way effect, can be considered as 
otherwise than precarious, whatever may be the avowed state of 
the principle at the time of its commencement. 

It has been said that, by embarking in the colony trade of 
either of the belligerents, neutral nations in some sort interpose 
in the war, since they assist and serve the belligerent, in whose 
trade they so embark. It is a sufllcient answer to this observa- 
tion, that the same course of reasoning would prove that neutrals 
ought to discontinue all trade whatsoever with the parties at war. 
A continuance of their accustomed peace trade assists and serves 
the belligerent with whom it is continued ; and if this effect were 
sufficient to make a trade unneutral and illegal, the best estab- 
lished and most usual traffic would of course become so. But 



[ 385 ] 

Great Britain supplies us with another answer to this notion, that 
our inteifprt^nce in the trade of the coh)nies of her enemies is un- 
lawful, became they are benejited by it. It is known that the 
sanit' trade is, and long lias been, carried on by British subjects ; 
and your memorialists feel themselves bound to state that, ac- 
cording to authentic information lately received, the government 
of (ireat Britain docs at this moment grant licenses to neutral 
vessels, taking in a proportion of their cargoes there, to proceed 
on trading voyages to the colonies of Spain, from which she would 
exclud*^ us, upon the condition that the return cargoes shall be 
earned to Great Britain, to swell the gains of her merchants, and 
to give her a monopoly of the commerce of the world. This 
great belligerent right then, upon which so much has been sup- 
posed to depend, sinks into an article of barter. It is used, not 
as a hostile instrument wielded by a warlike state, by which her 
enemies are to be wounded, ur their colonies subdued, but as the 
selfish means of commercial aggrandizement, to the impoverish- 
ment and ruin of her friends ; as an engine by which Great 
Britain is to be lifted up to a vast height of (>rosperity, and the 
trade of neutrals crippled, and crushed, and destroyed. Such 
acts are a most intelligible commentary upon the principle in 
question. They show that it is a hollow and fallacious princi- 
ple, susceptible of the worst abuse, and incapable of a just and 
honourable application. They show that in the hands of a great 
maritime state, it is not in its ostensible character of a weapon of 
hostility that it is prized, but rather as one of the means of esta- 
blishint; an unbounded monopoly, by which every enterprize, cal- 
culated to promote national wealth and power, shall be made to 
begin and end in Great Britain alone. Such acts may well be 
considered as pronouncing the condemnation of the principle 
against which we contend, as withdrawing from it the only pre- 
text upon which it is possible to rest it. 

Great Britain does not pretend that this principle has any 
warrant in the opinions of writers on public law. She does not 
pretend, and cannot pretend, that it derives any countenance from 
the conduct ot other nations. She is confessedly solitary in the 
use of this invention, by which rapacity is systematized, and a 
state of neutrality and war are made substantially the same. In 




[ 386 ] 

this absence oi' all olher authority, her courts have made an ap- 
peal to her own early example, for the justification of her own 
recent practice. Your memorialists join in that appeal, as af- 
fording the most conclusive and authoritative reprobation of the 
practice which it is intended to support by it. 

It would be easy to show, by an examination of the different 
treaties to which Great Biitain has been a party from times 
long past, that this doctrine is a modern usurpation. It would 
be equally easy to show, that during the greater part of the last 
, century, her statesmen and lawyers uniformly disavowed it, either 
expressly or tacitly. But it is to a review o^ judicial examples, 
of all others the most weighty and solemn, that your memorialists 
propose to confine themselves. 

In the war of 1744, in which Great Britain had the power, if 
she had thought fit to exert it, to exclude the neutral states from 
the colony trade of France and Spain, her high court of appeals 
decided that the trade was lawful, and released such vessels as 
had been found engaged in it. 

In the war which soon followed the peace of Aix la Chapelle, 
Great Britain is supposed to have first acted upon the pretension 
that such a trade was unlawful, as being shut against neutrals in 
peace. And it is certain that, during the whole of that war, her 
courts of prize did condemn all neutral vessels taken in the pro- 
secution of that trade, together with their cargoes, whether 
French or neutral. These condemnations, however, pniceeded 
upon peculiar grounds. In the seven years' war France did not 
th;"ow open to neutrals the traffic of her colonies. She establish- 
ed po free ports in the east, or in the west, with which foreign 
vessels could be permitted to trade, either generally or occasion- 
ally as such. Her first practice was simply to grant special li- 
censes to particular neutral vessels, principally Dutch, and com- 
monly chartered by Frenchmen, to make, under the usual restric- 
tions, particular trading voyages to the colonies. These licenses 
furnished the British courts with a peculiar reason for condemn- 
ing vessels sailing under them, viz. " that they became in virtue 
of them the adopted or naturalized vessels of France.^' 

As soon as it w.is known that this effect was imputed to these 
licenses they were discontinued, or pretended to be so ; but the 



[ 387 ] 

discontinuance, whether real or supposed, produced no change 
in the conduct of Great Britain; for neutral vessels, employed in 
this trade, were captured and condemned as before. The grounds 
upon which they continued to be so captured and condemned, 
may best be collected fiom the reasons subjoined to the printed 
cases in the prize causes decided by the high court of admiralty, 
(in which Sir Thomas Salisbury at that time presided,) and by 
the lords commissioners of appeals, between 1757 and 1760. 

In the case of the America, (which was a Dutch ship bound 
from St. Domingo to Holland with the produce of that island be- 
longing to French subjects, by whom the vessel had been char- 
tered,) the reason stated in the printed case is, " that the ship 
must be looked upon as a French ship, (coming from St. Do- 
mingo,) for by the laws of France no foreign ship can trade in 
the French West Indies.'' 

In the case of the Snip, the reason (assigned by Sir George 
Hays and Mr. Pratt, afterwards Lord Camden) is, " for that the 
Snip (though once the properly of Dutchmen) being employed 
in carrying provisions to, and goods from a French colony, there- 
by became a French ship, and as such was justly condemned." 

It is obvious that the reason, in the case of the America, pro- 
ceeds upon a presumption, that as the trade was, by the standing 
laws of France, even up to that moment, confined to French 
ships, any ship found employed in it must be a French ship. The 
reason in the other case does not rest upon this idle presumption, 
but takes another ground ; for it states, that by the reason of the 
trade in which the vessel was employed, she became a French 
vessel. 

It is manifest that this is no other than the first idea of adop- 
tion or naturalization, accommodated to the change attempted to 
be introduced into the state of things by the actual or pretended 
discontinuance of the special licenses. What then is the amount 
of the doctrine of the seven years' war, in the utmost extent 
which it is possible to ascribe to it ? It is in substance no more 
than this, that as France did not, at any period of that war, aban- 
don, or in any degree suspend, the principle of colonial monopo- 
ly, or the system arising out of it, a neutral vessel found in the 
prosecution of the trade, which, according to that principle and 



[ 388 ] 

that system still continuing in force, could only be a French trade 
and open to French vessels, either became., or was legally to be 
presumed to be a French vessel. It cannot be necessary to show- 
that this doctrine differs essentially from the principle of the 
present day ; but even if it were otherwise, the practice of that 
war, whatever it might be, was undoubtedly contrary to th^t of 
the war of 1744, and as contrasted with it will not be considered 
by those who have at all attended to the history of these two 
periods, as entitled to any peculiar veneration. The effects of 
that practice were almost wholly confined to the Dutch, who had 
rendered themselves extremely obnoxious to Great Britain, by 
the selfish and pusillanimous policy, as it was falstly called, 
which enabled them during the seven years' war to profit of the 
troubles of the rest of Europe. 

In the war of 1744, the neutrality of the Dutch, while it con- 
tinued, had in it nothing of complaisance to France ; they fur- 
nished from the commencement of hostilities, on account of the 
pragmatic sanction, succours to the confederates ; declared openly, 
after a time, in favour of the queen of Hungary ; and finally 
determined upon and prepared for war, by sea and land. Great 
Britain, of course, had no inducement in that war to hunt after 
any hostile principle, by the operation of which the trade ot the 
Dutch might be harassed, or the advantage of their neutral posi- 
tion, while it lasted, defeated. In the war of 1756 she had this 
inducement in its utmost strength. Independent of the commer- 
cial rivalry existing between the two nations, ihe Dutch had 
excited the undisguised resentment of Great Britain, by declining 
to furnish against France the succours stipulated by treaty ; by 
constantly supplying France with naval and warlike stores, 
through the medium of a trade systematically pursued by the 
people, and countenanced by the government ; by granting to 
France, early in 1757, a free passage through Namur and Maes- 
tricht, for the provisions, ammunition, and artillery, belonging to 
the array destined to act against the territories ot Prussia, in the 
neighbourhood of the Low Countries ; and by the indifference 
with which they saw Nieuport and Ostend surrendered, into the 
hands of France, by the court of Vienna, which Great Britain 
represented to be contrary to the Barrier treaty and the treaty of 



[ 389 ] 

Utrecht. Without entering into the sufficiency of these grounds 
of dissatisfaction, which undoubtedly had h gr^at influence un 
the conduct of Great Britain towards the Dutch, from 1757 un- 
til the peace of 1763, it is manifest that this very dissatisfaction, 
little short of a disposition to open war, and frequently on the 
eve of producing it, takes away, in a considerable degree, from the 
authority of any practice to which it may be supposed to have 
led, as tending to establish a rule of the public law of Europe. 
It may not be improp.M' to observe too, that the station occupied 
by Great Britain in the seven years' war, (as proud a one as any 
country ever did occupy,) compared with that of the other Ku- 
ropean powers, was not exactly calculated to make the measures 
which her resentments against Holland or her views against 
France might dictate, peculiarly respectful to the general rights 
of neutrals. In the north, Russia and Sweden were engaged in 
the confederacy against Prussia, and were, of course, entitled 
to no consideration in this respect. The government of Sweden 
was. besides, weak and impotent. Denmark, it is true, took no 
part in the war, but she did not suffer by the practice in question. 
Besides, all these powers combined would have been as nothing 
asfainst the naval strength of Great Britain in 1758. As to Spain, 
she could have no concern in the question, and at length be- 
came involved in tht* war on the side of France. Upon the 
whole, in the war of 1756, Great Britain had the power to be 
unjust, and irresistible temptations to abuse it. [n that of 1744, 
her power was, perhaps, equally great, but every thing was fa- 
vourable to equity and moderation. The example afforded on 
this subject, therefore, by the first war, has far better titles to re- 
spect than that furnished by the last. 

In the American war the practice and decisions on this point, 
followed those of the war of 1744. 

The question first came before the lords of appeal in January, 
1782, in the Danish cases of the Tiger, Copenhagen, and others 
captured in October, 1780, and condemned at St. Kitts, in De- 
cember following. The grounds on which the captors relied for 
condemnation, in the Tiger, as set forth at the end of the respon- 
dent's printed case, were, " for that the ship, havina been trading 
" to Cape Francois, where none but French ships are allowed 

50 



[ 390 ] 

" to carry on any traffic, and having been laden at the time ol 
" the capture, with the produceiof the French part of the island 
" of St. Domingo, put on board at Cape Francois, and both ship 
"'and cargo taken confessedly coming from thence, must, (pur- 
" suant to pi-ecedents in the like cases in the last war,) to all in- 
" tents and purposes, be deemed a ship and goods belonging to the 
" French, or at least adopted, and naturalized as such." 

In the Copenhagen, the captor's reasons are thus given : 

" 1st. Because it is allowed that the ship was destined, with 
" her cargo, to the island of Guadaloupe, and no other place." 

" 2dly. Because it is contrari/ to the established rule of gtnt- 
" ral law, to admit any neutral ship to go to, and trade at, a 
" port belonging to a colony of the enemy, to which such neutral 
" ship could not have freely traded in time of peace." 

On the 22d of January, 1782, these causes came on for hear- 
ing before the lords of appeal, who decreed restitution in all of 
them : thus in the most solemn and explicit manner disavowing 
and rejecting the pretended rules of the law of nations, upon 
which the captors relied ; the first of which was literally borrow- 
ed from the doctrine of the war of 1756, and the last of which 
is that very rule on which Great Britain now relies. 

It is true, that in these cases the judgment of the lords was 
pronounced upon one shape only of the colony trade of France, 
as carried on by neutrals ; that is to say, a trade between the co- 
lony of France and that of the country of the neutral shipper^ 
But, as no distinction was supposed to exist, in point of princi- 
ple, between the different modifications of the trade, and as the 
judgment went upon general grounds applicable to the entire 
subject, we shall not be thought to overrate its effect and extent, 
when we represent it as a complete rejection both of the doctrine 
of the seven years' war, and of that modern principle by which 
it has been attempted to replace it. But at any rate, the subse- 
quent decrees of the same high tribunal did go that length. W ith. 
out enumerating the cases of various descriptions, involving the 
legality of the trade in all its modes, which were favourably 
adjudged by the lords of appeal after the American peace, it 
will be sufficient to mention the case of the Vervagting, decided 
by them in 1785 and 1786. This was the case of a Danish 






t 391 ] 

ship laden with a cargo of dry goods and provisions, with which 
she was bound on a voyage from Marseilles to Martinique and 
Cape Francois, where she was to take in for Europe a return 
cargo of West India produce. The ship was not proceeded 
against, but the cargo, which was claimed for merchants of Os- 
tend, was condemned as enemy's property (as in truth it was) by 
the vice admiralty of Antigua, subject to the payment of freight, 
jtro rata itineris, or rather for the whole of the outward voyage. 
On appeal, as to the cargo, the lords of appeal, on the 8th of 
March, 1785, reversed the condemnation, and ordered further 
proof of the property to be produced within three months. On 
the 28th of March, 1786, no further proof having been exhibited, 
and the proctor for the claimants declaring that he should exhibit 
none, the lords condemned the cargo, and on the same day re- 
versed the decree below, giving freight, pro rata itineris, (from 
which the neutral master had appealed,) and decreed freight 
generally, and the costs of the appeal. 

It is impossible that a judicial opinion could go more conclu- 
sively to the whole question on the colony trade than this ; for it 
not only disavows the pretended illegality of neutral interposi- 
tions in that trade, even directly between France and her colo- 
nies, (the most exceptionable form, it is said, in which that inter- 
position could present itself,) it not only denies that property 
engaged in such a trade is, on that account, liable to confiscation, 
(inasmuch as, after having reversed the condemnation of the car- 
go, pronounced below, it proceeds afterwards to condemn it 
merely for loant of furtlier proof as to the property,^ but it 
holds that the trade is so unquestionably lawful to neutrals, as not 
even to put in jeopardy the claim to freight for that part of the 
voyage which had not yet begun, and which the party had not 
yet put himself in a situation to begin. The force of this, and 
the other British decisions produced by the American war, will 
not be avoided, by suggesting that there was any thing peculiar- 
ly favourable in the time when, or the manner in which, France 
opened her colony trade to neutrals on that occasion. Some- 
thing of that sort, however, has been said. We find the follow- 
ing language in a very learned opinion on this point : " It is cer- 
tainly true, that in the last war, (the American war,) many de- 



[ 392 ] 

cisions took place which then pronounced, that such a trade be- 
twein Frnnce and her colonies was not considered as an unneutral 
comm«'rce ; but under what circumstances ? It was understood 
that France, in opening her colonies during the war, declared, 
that this was not done with a temporary view relative to the war, 
but on a general permanent purpose of altering her colonial sys- 
tem, and of admitting foreign vessels, universally, and at all 
times, ti» a participation of that commerce ; taking that to be the 
fact Jiowever suspicious its commencement might be, during the 
actual existence of a war) there was no ground to say, that neu- 
trals were not carrying on a commerce as ordinary as any other 
in which they could be engaged; and therefore in the case uf the 
Vervagting, and in many other succeeding cases, the lords de- 
creed payment of freight to the neutral ship-owner. It is lit 
to be remembered on this occasion, that the conduct of France 
evinced how little dependence can be placed upon explanations 
of measures adopted during the pressure of war ; for, hardly was 
the ratification of the peace signed, when she returned to her an- 
cient system of cohmial monop(ly." 

W*^ answer to all this, that, to refer the decision of the lordK, 
in the Vervagting, and other succeeding cases, to the reason here 
assigned, is to accuse that high tribunal of acting upon a confi- 
dence which has no example, in a singularly incredible declara- 
tion, (if, indend, such a declaration was ever madf-,) after the 
wtt<-r falsehood of it had been, as this learned opinion does itself 
inform us, unequivocally and notoriously ascertained. 

We have seen that the Vervagting was decided by the lords 
in 1785 and 17S6, at least two years after France had, as we are 
told, " returned to her ancient system of colonial monopoly," 
and when of course the supposed assertion, of an intended per- 
manent abandonment of that system could not be permitted to 
produce any legal consequence. 

We answer further, that if this alleged declaration was in fact 
made, (and we must be allowed to say, that we have found no 
trace {)f it out of the opinion above recited,) it never was put 
into such a formal and authentic shape as to be the fair subject 
of judicial notice. 



[ 393 ] 

It is not contained in the Fiencii arrets of that day, where 
onlv it would be proper to look for it, and we are not referred to 
any oilier document proceeding from the government of France, 
in which it is said to appear. There does not, in a word, seem 
to have been any thing whicli an enlightened tribunal could be 
supposed capable of considering as a pledge on the part of 
France, that she had resolved upon or even meditated the ex- 
travagant change in her colonial system which she is said, in 
this opinion, to have been understood to announce to the world. 
But even if the declaration in question was actually made, ond 
that too with all possible solemnity, still it would be diflicult to 
persuade any thinking man that the sincerity of such a declara- 
tion was in any degree confided in, or that any person in any 
country could regard it in any other light than as a mere artifice, 
that could give no right which would not equally well exist with- 
out it. Upon the whole, it is manifestly impracticable to rest the 
decisions of the lords of appeal, in and alter the American war, 
upon any dependence placed on this declaration, of which there 
is no evidence that it ever was made, which it is certain was not 
authentically or formally made ; which, however made, was not 
and could not be believed at anytime, far less in 1"85 and 1786, 
when its falsehood had been unquestionably proved by the public 
and undisguised conduct of its supposed authors, in direct op- 
position to it. That Sir James Marriot, who sat in the high 
court ot admiralty of Great Britain during the greater part of 
the late war, did not consider these doctrines as standing upon 
this ground is evident ; for, notwithstanding that in the year 1756 
he was the most zealous and perhaps able advocate for the 
condemnation of the Dutch ships engaged in the colony trade of 
France, yet, upon the breaking out of the late war, he relied upon 
the decisions in the American war as authoritatively settling the 
legality of that trade, and decreed accordingly. 

If, as a more plausible answer to these decisions, considered 
in the light of authorities, than that which we have just ex-v 
amined, it should be said that they ought rather to be viewed 
as reluctant sacrifices to policy, or even to necessity, under cir- 
cumstances of particular difficulty and peril, than as an expres- 
sion of the deliberate opinion of the lords of appeal, or of the 



[ 394 ] 

government of Great Britain ; on the matter of right, it might 
perhaps be sufficient to reply, that if the armed neutrality coupled 
with the situation Great Britain as a party to the war did in any 
degree couipel these decisions, we might also expect to find at the 
same era some relaxation on the part of that country relative to 
the doctrine of contraband, upon which the convention of the 
armed neutrality contained the most direct stipulations which 
the northern powers were particularly interested to enforce. Yet 
such was not the fact. But in addition to this and other con- 
siderations of a similar description, it is natural to inquire why it 
happened that, if the lords of appeal were satisfied that Great 
Britain possessed the right in question, they recorded and gave 
to the world a series of decisions against it, founded not upon 
British orders of council, gratuitously relaxing what was still 
asserted to be the strict right (as in the late war) but upon 
general principles of public law. However prudence might have 
required (although there is no reason to believe it did require) 
an abstinence on the part of Great Britain, from the extreme 
exercise of the right she had been supposed to claim, still it could 
not be necessary to give to the mere forbearance of a claim the 
stamp and character of a formal admission that the claim itself 
was illegal and unjust. In the late war, as often as the British 
government wished to concede and relax, from whatever motive, 
on the subject of the colony trade of her opponents, an order of 
council was resorted to, setting forth the nature of the concession 
or relaxation upon which the courts of prize were afterwards to 
found their sentences ; and, undoubtedly, sentences so passed, 
cannot, in any fair reasoning, be considered as deciding more 
than that the order of council is obligatory on the courts, whose 
sentences they are. But the decrees of the lords of appeal, in 
and after the American war, are not of this description ; since 
there existed no order of council on the subject of them ; and of 
course they are, and ought to be, of the highest weight and 
authority against Great Britain, on the questions involved in and 
adjudged by them. 

This solemn renunciation of the principle in question, in the 
face of the whole world, by her highest tribunal in matters of 
prize, reiterated in a succession of decrees, down to the year 1786, 



[ 395 ] 

and afterwards, is poworfuHy confirmed by the acquiescence of 
Great Britain, during the first most important and active period 
of the late war, in the free and unlimited prosecution by neutrals 
of the whole colony trade of France ; she did, indeed, at last pro- 
hibit that trade by an instruction unprecedented in the annals of 
maritime depredation ; but the revival of her discarded rule was 
characterized by such circumstances of iniquity and violence, as 
rather to heighten, by the effect of contrast, the veneration of 
mankind for the past justice of her tribunals. 

The world has not forgotten the instruction to which we 
allude, or the enormities by which its true character was de- 
veloped. Produced in mystery, at a moment when universal 
sonfidence in the integrity of her government had brought upon 
the ocean a prey of vast value and importance ; sent abroad to 
the different naval stations, with such studied secrecy that it 
would almost seem to have been intended to make an experiment 
how far law and honour could be outraged by a nation proverbial 
for respecting both ; the heralds, by whom it was first announced, 
were the commanders of her commissioned cruizers, who at the 
same instant carried it into effect with every circumstance of 
aggravation, if of such an act there can be an aggravation. 
Upon such conduct there was but one sentiment. It was con- 
demned by reason and justice. It was condemned by that law 
which flows from and is founded upon them ; it was condemned, 
and will for ever continue to be condemned, by the universal 
voice of the civilized world. Great Britain has made amends, 
with the good faith which belongs to her councils, for that act of 
injustice and oppression ; and your memorialists have a strong 
confidence that the late departure from the usual course of her 
policy will be followed by a like disposition to atonement and 
reparation. The relations which subsist between Great Britain and 
the United States rest upon the basis of reciprocal interests, and 
your memorialists see in those interests, as well as in the justice 
of the British government and the firmne.'s of our own, the best 
reasons to expect a satisfactory answer to their complaints, and 
a speedy abandonment of that system by which they have been 
lately harassed and alarmed. 



[ 396 ] 

Your memorialists will not trespass upon y<^i"' time with a 
recital of the various acts by which our coasts, and even our 
ports and harbours, have been converted into scenes of violence 
and depredation ; by which the security of our trade and pro- 
perty has been impaired ; the rights of our territory invaded ; 
the honour of our country humiliated and insulted ; and our 
gallant countrymen oppressed and persecuted. They feel it to 
be unnecessary to ask that the force of the nation should be 
employed in repelling and chastizing the lawless freebooters who 
have dared to spread their ravages even beyond the seas which 
form the principal theatre of their piratical exertions, and to 
infest our shons with their irregular and ferocious hostility. 

These are outrages which have pressed themselves in a pecu- 
liar manner upon the notice of our government, and cannot have 
failed to excite its indignation, and a correspondent disposition 
to prevent and redress them. 

Such is the view which your memorialists have taken, in this 
anxious crisis of our public affairs, of subjects which appear to 
them, in an alarming degree, to affect their country and its 
commerce, and to involve high questions of national honour and 
interest, of public law and individual rights, whicli imperiously 
demand discussion and adjustment. They do not presume to 
point out the measures which these great subjects may be sup- 
posed to call for. The means of redress for the past and secu- 
rity for the future are respectfully, confidently submitted to your 
wisdom ; but your memorialists cannot forbear to indulge a hope, 
which they would abandon with deep reluctance, that they may 
yet be found in amicable explanations with those who have 
ventured to inflict wrongs upon us, and to advance unjust pre- 
tensions to our prejudice. 

Baltimore, Jan. 21, 1806. 



[ 397 ] 



N°- III. 



PRIVATE CORRESPONDENCE WITH MR. MADISON. 



Mr. PiNKNEY to Mr. Madison. 

Private. "London, /i/ne 29<A, 1808. 

" Dear Sir,— I had a lon^ interview this morninie; with Mr. 
Canning, which has given me hopes that the object mentioned in 
your letter of the 30th of April,* (a duplicate by the packet, 
for the St. Michael has not yet arrived,) may be accomplished, if 
I should authorize the expectation which the same letter suggests.! 
Some days must elapse, however, before I can speak with any 
certainty on the subject. The St. Michael will probably have 
arrived before that time, and will furnish me with an opportunity 
of giving you not only the result but the details of what has 
passed and may yet occur. I bea: you, in the mean time, to be 
assured that the most effectual care shall be taken to put nothing 
to hazard, and to avoid an improper commitment of our govern- 
ment. 

" I was questioned on the affair of the Chesapeake. There 
seems to be a disposition here to consider the amende honorable as 
already made, in a great degree at least, by Mr. Rose's mission ; 
but I am strongly inclined to think that it will not be diflSrult to 
induce them to renew their overture in the same manner, on terms 
more conformable with the views which you very justly take of 



* The ropeal of the Orders in Council, 
f The repeal of the Embargo. 

51 



[ 398 ] 

this interesting subject. I was told (it was not said officially) 
that the persons taken out of the Chesapeake would be readily 
restored. The punishment of the officer (otherwise than by his 
recall, which has been done) will, perhaps, form the greatest em- 
barrassment ; but I will endeavour to ascertain informally what 
will be done on that and every other part of the case. My sole 
object will be, of course, to lead them, as occasion offers, (as far 
as in ray power,) to do what they ought, in the way most for our 
honour. I can the more properly do this now, as Mr. Canning 
has himself proposed the subject to me as intimated above." 

M?'. PiNKNEY to M)\ Madison. 

Private. " Brighton, J?<?y 10th, 1808. 

" Dear Sir, — I had the honour to write you a short letter, by 
Mr. Temple Bowdoin, dated, I think, on the 29th of last month, 
of which (not having it here) I cannot now send a duplicate. It 
stated that I had received by the British packet a duplicate of 
your despatch by the St. Michael — that 1 had just had an inter- 
view with Mr. Canning — and that there was reason to believe that 
the object mentioned in that despatch might be accomplished upon 
my authorizing the expectation which it suggests. It was arranged 
between Mr. Canning and myself that another interview should 
take place about this time, and that he should send me a private 
note to Brighton, (where I am come for a few weeks on account 
of my health,) appointing a day for that purpose. I have not 
yet received this note ; but am confident I shall have it to-mor- 
row or next day. I shall set out for London the moment it 
reaches me. 

" I stated in the letter, abovementioned, that I was told by Mr. 
Canning (extra officially) that there would be no objection here 
to restore the men taken from the Chesapeake ; and I suggested 
a hope that (except as to the punishment of Berkeley) there would 
not- be much difficulty in inducing them to propose in a proper 
manner suitable reparation for that aggression. This matter I 
will endeavour to ascertain fully at our next meeting. 

" I write this with the view of sending it by the packet. News- 
papers have been and will be sent by other opportunities. They 



[ 399 ] 

are highly interesting with reference to Spain. I enclose a part 
of Cobbett's Register of last night, (the residue will go with the 
packets of newspapers,) containing the British order in council 
that hostilities shall cease with Spain, &c., and the prorogation 
speech." 

Mr. PiNKNET to Mr. Madison. 

Private. " August \7th, 1808. 

" Dear Sir, — T omitted to mention in my late letters that, at 
my second interview with Mr. Canning, he suggested incidental- 
ly that the late orders in council, or proclamation relative to Spain 
opened the ports of that country, not in the occupation of France, 
to a direct trade between those ports and the United States. 

" As I had in view a complete revocation of the orders of 
January and November, 1807, and the orders founded upon them, 
I did not think it right to appear to attach any importance to this 
suggestion, very carelessly thrown out, by asking explanations ; 
and 1 was the less inclined to do so, as I still adhered to my 
opinion that there could be no compromise with their present 
system. 

" The same reasons (and others, indeed, with which it is not 
necessary to trouble you) prevented me, even after my last inter- 
view with Mr. Canning, from inviting any formal assurances on 
this point ; but, as the real effect of the orders or proclamation of 
the 4th of July began to be doubted, and it might 6e desirable 
to have those doubts removed, I did not think ii^ improper to en- 
courage an application on the subject to the Uoard of Trade by 
some merchants in the city. 

" You will find a copy of their inquiries (less extensive than 
they ought too have been) and of the answers of the Board in 
the newspapers of yeste'^ay, from which it appears, 

"1. That A mef'^an vessels may proceed from a. port in the 
United States with a cargo the produce of the United States, or 
colonial produce if not of the enemies^ colonies^ direct to any 
port in Spain or Portugal not in the possession or under the con- 
trol of the enemies of Great Britain, and return back to the 



[ 400 ] 

United States direct with a cargo the growth or produce of Spain 
or Portugal 

" 2. I hat an American vessel, havins; entered a port in Spain 
pre\i<»us to the commencement of hostilities by the Patriots 
agaiiis.t France, may proceed from such port with a cargo, the 
growth and produce of Spain, direct to a port of the United, 
States unless the vessel entered in breach of the Orders in 
Council. 

" \ ou will observe that the answers are strictly confined to 
the points proposed by the questions ; but it would seem that 
from these explanations others necessarily follow." 



Mr. FiNKNEY to Mr. Madison. 

Private. '' London, Sept. 10th, 1808. 

" i>KAR Sir, — I intended to have enclosed in ray private letter 
of the 7th, by Mr. Bethune, who left town on the evening of that 
day for Falmouth, to embark in the B. Packet, a triplicate of my 
public letter of the 4th ol Ausust, but in my hurry I omitted it. 
I transmit it now by Mr. Young, our consul at Madrid, who is 
about to sail from Gravesend for New- York, and I beg to renew 
my request that the slight variations from the original and dupli- 
cate, which you will find in the lines marked in the margin with 
a peiicil, may be adopted. The only one of these corrections, 
however, aViout which I am in the least anxious, is in the tburth 
pai agraph from the end, which in my rough draft reads thus, " at 
" the close of the interview, I i)b.verved, that, as the footing upon 
« which this interview \y*s, &c." This awkward iteration of the 
word interview, (if not actually avoided in the original and du- 
plicate, as perhaps it is,) 1 really ^\s\i corrected. 

" Mr. Canning's reply to my note n^ making its appearance, 
I went this morning to Downing-street to Squire about it ; but 
both Mr. Canning and Mr Hammond were in the country. I 
shall not omit to press feu- the answer (without, however, giving 
unnecessary ofi'ence) until I obtain it, or have the delay explained. 
It is possible that, when received, it may be found to adopt our 
proposal, and that they are merely taking time to connect with 



[ 401 ] 

their compliance a Ion? vindication of their orders. This is one 
wav of accounting to the delay. 

" It is also possinle that they are actually undecided, arid that 
they wish to proscrastinate and keep back their answer until they 
can understand by tlit B. Packet (expected very soon) the work- 
ings of the embargo, and of the Spanish views in America ; un- 
til they can take measun of our election^; ; until they can ascer- 
ta.n what is to bi^ tlie course of France towards us ; until the state 
of L.uiope, so flattering to their hopes, shall improve yet more, 
or at any rate be past the danger of a relapse, &c. &c. All this 
is possible ; but I continue to think that they will reject what I 
have proposed. Their preser.t elevation is exactly calculated 
(aided by false estimates of Arr.,M-ica) to mislead them to such a 
conclusion. They are hardly in a temper of mind to appreciate 
the motives of the President's conduct. The chances are that 
they will ascribe (he assurances I have been authorized to give 
them, as to the embargo law, to a mere anxiety to get rid of that 
law ; and that they will i»nly ste in those assurances a pledge 
that we are heartily tired of our actual position, and are ready 
to abandt>n it at any rate. They w'Jl be apt, in a word, to pre- 
SUK e (believing, as I am sure they do, that we will not venture 
upon extremities with thf^m) that, by holding off, they will com- 
pel us to retract our late measures (the most wise and honourable 
ever adopted by a goveriiment) and to fail at their feek Vou 
must not be surprised if they should be found to expecV even 
more than this from the pressure of the embargo. I allude tfc the 
influence which many hope it will have upon our elections\in 
bringing about a change of men as well as oi measures. In tKs 
I trust they will be signally disappointed. \ 

If (party spirit out of the question ) the conduct of our govern- 
laent towards the two powers that keep the world in an uproar \ 
w>h their quarrel has been really disapproved in tl»e United 
States, the overture just made to both cannot fail to suHue it. 
I anticipate from it a perfect union of sentiment in favour of ^ly 
attitude which it may be necessary to take. It puts us so une 
quivucAlly in the right, that, althousrh we were not, I thin'- . bound 
to make it, it is impossible not to rt joic. that it has been made. 
In any event it must be salutary and rausi do us honour. The 



[ 402 ] 

overture, however, would seem to be more advantageous to Great 
Briuin than France. For if you should take off the embargo 
as lo France and continue it as to Great Britain, your proceed- 
ing would have little substance in it, considered as a benefit to 
France, unless and until you went to war against Great Britain. 
But the converse of this would have a /ast effect in favour of 
Great Britain, whether you went to war with France or not. 

'' It does not follow, and certainly is not true, that the over- 
ture is for that reason unjust to France ; although I think it the 
clearest case in the world that Great Britain is (at least) in pari 
delicto with France on the subject af that code of violence which 
drives neutrals from the seas and justice from the world. 

" It is saia here, by those whc afiect to know, that a conciHa- 
tory conduct by France towar^is the United States will not be 
acceptable to this govemmt-uJ ; and certainly Marriott's book 
affords some reason for suspicion that a reppal of the French 
decrees would not be followed by that of the British orders. 
Such infatuation is scarcely credible, }et it would not be much 
worse than their present backwardness to avail themselves of 
what has lately been said tr them. 

" After all, it will be safest (for a time longer) to keep opinion 
as much as possible in suspense — and I need not repeat my 
assurances that the moment I receive the information I am ex- 
pecting, no effort shall be spared to put you in possession of it." 

Mr. PiNKNEY to Mr. Madison. 

Private. " London, Sept. 21, 1808. 

" Dear Sir, — The Hope arrived at Cowes from France 
the 13th. 

" Not having heard from Mr. Canning, although he returne* 
to Londen the l6th, I called again yesterday at Downing-strpJt, 
and w?s assured that the answer to my note would be sen-' to- 
nigh or early to-morrow morning. Mr. Atwater wi/l of <;ourse 
^ able to leave town on Friday, and embark on Saturday with 
a copy of it. 

«' I have been told since the arrival of the last Britwft packet 
(but do not believe it") that there is move probabihty than I had 



( 403 ) 

anticipated, that the late events in Spain and Portugal (which 
ought not to be considered as deciding any thing) will have an 
effect on public opinion in America against the continuance of 
the enibargo, and favourable to all the purposes of Great Britain. 
If this were true, I should think it wis deeply to be lamented. I 
may misunderstand the subject ; but 1 cannot persuade myself 
that any thing that has happened on this side of the Atlantic, 
ought to induce us in any degree to retreat from our present 
system. 

" If we should resolve to trade with Spain and Portugal 
(Great Britain and France persisting in their orders and decrees) 
in any way to which Great Britain would not object, we must 
suspend the enibargo as to those countries only, or as to those 
oountries and Great Britain, or we must repeal it altOi/ether. 

" The temptation to the first of these courses is, even in a 
commercial sense, inconsiderable — the objection to it endless. 
The object to be gained (if no more was gained than ought to be 
gained) would be trifling. There could indeed be no gain. An 
inadequate market redundantly supplied would be more inju- 
rious than no market at all ; it would he a lure to destruction 
and nothing more. A suspension of the embargo, so limited in 
its nature as this would be (supposing it to be in fact what it 
would be in form) would have a most unequal and invidious 
operation in the different quarters of the Union, of which the va- 
rious commodities would not in the ports of Portugal and Spain 
be in equal demand. 

- " A war with France would be inevitable — and such a war, 
(so produced) from which we could not hope to derive either 
honour or advantage, would place us at the mercy of Great 
Britain, and on that account would in the end do more to cripple 
and humble us, than any disaster that could otherwise befal us. 

" The actual state of Spain and Portugal is moreover not to 
be relied upon. My first opinion on that subject remains ; but 
even the most sanguine will admit that there is great room for 
doubt. The Emperor of France is evidently collecting a mighty 
force for the reduction of Spain ; and Portugal must share its 
fate. And even if that force should be destined (as some sup- 
pose) first to contend with Austria, the speedy subjugation of 



[ 404 ] 

Spain is not the less certain. If France should succeed, Spain 
and i'ortuifdl would as;airi fall undei the British orders of No- 
vember, as well as under the operation of the French decrees. 
Oar cargoes would scarcely have found tht^ir way to the ocean 
in search of the boasted market, before they would be once more 
in a state of prohibition, and we should in the mean time have 
incurred the scandal of suffering an improvident thirst of gain to 
seduce us from our principles into a dilemma presenting no alter- 
native but loss in all the senses of the word. 

" But it is not even certain what Great Britain would herself 
finally say to such a partial suspension of the embargo. She 
wo ild doubtless at first approve of it. But her ultimate course 
(especially if war between France and the United States were 
not the immediate consequence, or if the measure were eventually 
less beneficial to herself than might be supposed at the outset) 
ought not to be trusted. That she should approve at first, is 
hardly to be questioned, and the considerations upon which she 
would do so, are precisely those which should dissuade us from 
it. Some of these are — the aid it would afiford to her allies, as 
well as to her own troops co-operating with them, and its conse- 
quent tendency to destroy every thing like system in our conduct 
— its tendency to embroil us with France, its tendency to itsduce 
us, by overstocking a limited market, to mnke our comraodiiies of 
no value — to dissipate our capital— to ruin our merchants with- 
out benefiting our agriculture — to destroy our infant manufactures 
without benefiting our commerce — its tendency to habituate us to 
a trammelled trade, and to fit us for acquiescence in a maritime 
despotism. But there are other reasons — our trade with >pain 
and Portugal, while it lasted, would be a circuitous one with 
Great Britain and her colonies, for their benefit. < )ur produc- 
tions would be carried in the first instance to Spain and Portu- 
gal, would be bought there for British account, and would find 
their way to the West Indies or centre here, as British conve- 
nience might require, and thus in eflect the embargo be removed 
as to (ireat Britain, while it continued as to France, and we 
professed to continue it as to both. And if any profits should 
arise from this sordid traffic, they _wl^ul<l become a fund, to ena- 
ble us to import into the United States directly or indirectly the 



[ 405 ] 

mamifactuies of Great Britain, and thus relieve her in another 
way, while her orders would prevent us from receivins^ the 
commodities of her enemy. It would be far better openly to 
take off the embargo as to Great Britain, than while affecting to 
continue it as to that power to do what must rescue h^r com- 
pletely (and that too without advantage to ourselves) from the 
pressure of it, at the same time that it would promote her views 
against France in Portugal and Spain. 

" As to withdrawing the embargo as to Gieat Britain, as well 
as Spain and Portugal, while the British orders are unrepealed, 
the objections to that course are just as strong now as they were 
four months ago. The change in Spain and Portiigal (If it were 
even likely to last) cannot touch the principle of the embargo, as 
regards Great Britain, who re-asserts her orders of November, in 
the very explanations of the 4th July, under which we must trade 
with those countries, if we trade with them at all. If we include 
Great Britain in the suspension, and exclude France, we do now 
what we have declined to do before, for the sake of a delusive 
commerce, which may perish before it can be enjoyed, and can- 
not in any event be enjoyed with credit, with advantage, or even 
with safety. We take part at once with Great Britain against 
France, at a time the least suited that could be imai/in^d to such 
a determination, at a time when it might be said we were em- 
boldened by French reverses, to do what before we could not 
resolve upon, or even tempted by a prospect of a scanty profit, 
exaggerated by our cupidity and impatience to forget what was 
due to consistency, to character and permanent prosperity. We 
sanction too the maritime pretensions which insult and injure us ; 
we throw ourselves, bound hand and foot, upon the genero.<^ty 
of a government that has hitherto refused us justice, and all ihis 
when the affair of the Chesapeake, and a host of other wrongs, 
are unredressed, and when Great Britain has just rejected ,ui 
overture which she must have accepted with eagerness if her 
views were not such as it became us to suspect and guard against. 

To repeal the embargo altogether would be preferable to either 
of the other courses, but would notwithstanding be so fatal to us 
in all respects, that we should long feel the wound it wuuld 
inflict, unless indeed some other expedient, as strong at least and 

52 



[406 ] 

as efficacious in all its bearings, can (as I fear it cannot) be sub- 
stituted in its place. 

" War would seem to be the unavoidable result of such a step. 
If our commerce should not flourish in consequence of this mea- 
sure, nothing would be gained by it but dishonour ; and how it 
could be carried on to any valuable purpose it would be difficult 
to show. If our commerce should flourish in spile of French and 
British edicts, and the miserable state of the world, in spite of 
war with France, if that should happen, it would, I doubt not, be 
assailed in some other form. The spirit of monopoly has seized 
the people and government of this country. We shall not 
under any circumstances be tolerated as rivals in navigation and 
trade — it is in vain to hope that Great Britain will voluntarily 
foster the naval means of the United States. All her prejudices — 
all hej calculations are against it. Even as allies we should be 
subjects of jealousy. It would be endless to enumerate in detail 
the evils which would cling to us in this new career of vassallage 
and meanness, and tedious to pursue our backward course to the 
extinction of that very trade to which we had sacrificed every 
thing else. 

" On the other hand, if we persevere we must gain our pur- 
pose at last. By complying with the little policy of the moment, 
we shall be lost. By a great and systematic adherence to prin- 
ciple, we shall find the end to our difficulties. The embargo and 
the loss of our trade are deeply felt here, and will be felt with more 
severity every day. The wheat harvest is like to be alarmingly 
shott, nnd the state of the continent will augment the evil. The 
discontents among their manufacturers are only quieted for the 
moment by temporary causes. Cotton is rising, and soon will 
be scarce. Unfavourable events on the continent will subdue 
the temper unfriendly to wisdom and justice which now prevails 
here. But above all, the world will I trust be convinced that 
our firmness is not to be shaken. Our measures have not been 
without effect. They have not been decisive, because we have 
not been thought capable ot persevering in self denial, if that can 
be called self denial which is no more than prudent abstinence 
from destruction and dishonour. 



[ 407 ] 

" I ought to mention that I have been told by a most lespectr 
iible American merchant here, that large quantities of such 
woollen cloths as are prohibited bv our non-importation act, have 
been and continue to be sent to Canada, with the view of being 
smuggled into the United ^-tates. 

" I beg you to excuse the frequency and length of my private 
letters. 

" I need not tell you that I am induced to trouble you with 
my hasty reflections, because I think j'ou stand in need of them. 
I give them merely because I believe that you are entitled to 
know the impressions which a public servant on this side of the 
water receives from a view of our situation." 

" P. S. Sept. 24th. Mr. Canning's answer received last 
night confirms all my late anticipations. It is a little extraordi- 
nary that if a written proposal was required from me icith the 
idle motive mentioned in the accompanying papers, ho such mo- 
tive was suggested at the time, and even that other motives were 
suggested. The fact probably is that they wished to evade the 
overture, and hoped that it would not be formally made. Being 
made it was difficult to dispose of it, and hence the delay. Be- 
fore any public use is made of Mr. Canning's statement, I should 
wish my reply to be received." 

[In order to understand the above passage, it is necessary to 
observe, that Mr. Canning in a letter accompanying his note of 
the 23d September, 1808, in reply to Mr. Pinkney's overture on 
the subject of the repeal of the orders in council, had stated, as 
a reason for requiring their communications to be in writing, the 
misrepresentation which had taken place in America of former 
conferences between them, at the same time adding ; " You gave 
me on that occasion the most satisfactory proof that such misre- 
presentation did not originate with you, by communicating to 
me that part of your despatch, in which the conferetices particu- 
larly referred to were related, and related correctly ; but this 
very circumstance, while it establishes your personal claim to 
enti«i;e confidence, proves, at the same time, that a faithful report 
©f a conference on your part, is not a security against its misre- 



[ 408 ] 

presentation." In his reply to this letter, Mr. Pinkney observed, 
thai no |)erson could be less disposed than he was to find fault 
with the object of Mr. Canning's letter, which appeared to be to 
guard against all misrepresentation of what had passed in their 
late interviews " beyond what you find recorded in my note. 
You have told me that 1 have, personally, no concern in that 
object, and I did not require to be told that my government has 
as little. I understand, indeed, that the circumstance which has 
suggested a peculiar motive for this proceeding was one of those 
newspaper misrepresentations which every day [)roduces where 
the press is free, which find no credit and beget no consequence 
and for which it is greatly to be feared your expedient will pro- 
vide no remedy. Of my conduct, v,'hen tliat circumstance oc- 
curred, in giving you unsolicited proofs that 1 had transmitted to 
Mr. Secretary Madison a faithful report of our conferences, mis- 
taken by public rumour or private conjecture, it is not necessary 
for me to speak, for you have yourself done justice to it." 

[The following extracts from Mr. Pinkney's official reply to 
Mr. Canning's letter, seem also to be necessary to the understand- 
ing of the remarks whicli he afterwards makes upon it in a pri- 
vate letter to Mr. Madison. He recapitulates what had passed 
in conference between him and Mr. Canning, and states in a con- 
dense form the arguments by which he supported the proposal 
he had made.] 

" I meant to suggest, then, that upon your own principles it 
would be extremel}^ difficult to decline my proposal ; that your 
orders inculcate, as the duty of neutral nations, resistance to ihe 
maritime decrees of France, as overturning the public law of the 
world, and professedly rely upon that duty, and an imputed 
abandonment of it for their inducement and their justification; 
that of those orders, that of the 7th of .January, 1807, (of which 
the subsequent orders of November are said, in your official re- 
ply to mv note of the 23d of August, to be only an extension, 
(" an extension in operation not in principle,") was promulgated 
and carried into effect a few weeks only after the Berlin decree 
had made its appearance, when tlie American government could 



[ 409 ] 

not possibly know that such a decree existed, wiien there had 
been no attempt to enforce it, and when it had become probable 
that it would not be enforced at all, to the prejudice of neutral 
rights ; that the other orders were issued before the American 
government, with reference to any practical violation of its rights, 
by an attempt to execute the Berlin decree in a sense different 
from the stipulations of the treaty subsisting between the United 
States and France, and from the explanations given to General 
Armstrong by the French Minister of Mc.rine, and afterwards 
impliedly confirmed by M. Champagny, as well as by a corres- 
pondent practice, had any sufficient opportunity of opposing that 
decree, otherwise than as it did oppose it ; that your orders, thus 
proceeding upon an assumed acquiescence not existing in fact, re- 
taliated prematurely, and retaliated a thousand fold, through 
the rights of the United States, wrongs rather threatened than 
felt, which you were not authorized to presume the United States 
would not themselves repel, as their honour and their interests 
required ; that orders, so issued, to say the least of them, were 
an unseasonable interposition between the injuring and the 
injured party, in a way the most fatal to the latter ; that by 
taking justice into your own hands before you were entitled to 
do so, at the expense of every thing like neutral rights, and even 
at the expense of other rights justly the objects of yet greater 
sensibihty, and by inflicting upon neutral nations, or rather 
upon the United States, the only neutral nation, injuries infi- 
nitely more extensive and severe than it was in the power of 
France to inflict, you embarrassed and confounded, and ren- 
dered impracticable, that very resistance which you demanded 
of us : that very proposal destroyed all imaginable motives 
for continuing, whatever might have been the motives for adopt- 
ing, this new scheme of warfare; that it enabled you to withdraw, 
with dignity and even with advantage, what should not have 
come between France and us ; that its necessary tendency was 
to place us at issue with that power, or in other words, in the 
precise situation in which you have maintained we ought to be 
placed, if it should persist in its obnoxious edicts ; that the con- 
tinuance of our embargo, so modified, would be at least equiva- 
lant to your orders ; for that, in their most efficient state, your or- 



[ 410 ] 

tiers could do no more as regards the United States, than cut ol? 
their trade with France and tlie countries connected with her ; 
and that our embargo, remaining as to France and tliose countries, 
would do exactly the same ; that if the two courses were barely, or 
even nearly upon a level in point of expediency, Great Britain 
ought to h'^ forward to adopt that which w<is consistent with the 
rights and respectful to the feelings of others ; that my proposal, 
however, had powerful recommendations which the orders in 
council had not; that it woidd re-establish, without the hazard of 
any disadvantage, before new habits had rendered it difficult, if 
not impossible, a traffic which nourished your most essential 
manufactures, and various other important sources of your pros- 
periiy ; that it would not only restore a connexjon valuable in all 
its views, but prepare the way for the return of mutual kindness for 
adjustments greatly to be desired — and in a word, for all those 
consequences which follow in the train of magnanimity and con- 
ciliation, associated with prudence and justice. 

" Among the observations intended to illustrate my opinion of 
the certain, probable and possible effects of the concurrent acts 
which my proposal had in view, were those to which you allude 
in the sixth paragraph of ^your letter. Having stated that renewed 
commercial intercourse between Great Britain and the United 
States would be the first effect, I remarked in the progress of the 
conversation, that the edicts of France could not prevent that inter- 
course, even if France should adhere to them ; although Great 
Britain, by her superior naval means, might be able to prevent 
the converse of it ; that the power of France upon the seas was in 
no degree adequate to such a purpose ; and if it were otherwise, 
that it was not to be supposed that the United States, resuming 
their lawful commerce with this country after the recall of the 
British orders in council, would take no measures against sys- 
tematic interruptions of that commerce by force and violence, 
if such should be attempted. 

" If, when I was honoured by the different interviews before 
mentioned, I had been able to conjecture the nature of the argu- 
ments which were to have an influence against my proposal, as I 
now find them stated in your answer to my note, I should proba- 
bly have ventured to suggest, in addition to the remarks actually 



[ 411 ] 

Submitted to your consideration, that if " the blockade of the Eu- 
ropean continent," by France and the powers subservient to, .tt in 
combination with her, to which your orders, as " a temperate but 
determined retaliation," were opposed, has been " raised even 
before it has been well established," and if " that system" so op- 
posed, " of which extent and continuity were the vital princi- 
ples, has been broken up into fragments utterly harmless and con- 
temptible," there seems scarcely to be left, in your own view of 
the subject, any intelligible justification for perseverance in such 
of the retaliatory measures of Great Britain, as operate through 
the acknowle dged rights of a power confessedly no party to that 
combination, and ready to fulfil her fair neutral obligations, if 
you will suffer her to do so. Under such circumstances, to aban- 
don what is admitted to have lost its only legitimate object, is not 
" concession ;" it is simple justice. To France, indeed, it might 
be concession. But it is not France, it is the government of 
America, neither subservient to France nor combined with 
France, a third party, whose rights and interests your orders deep- 
ly affect without any adequate necessity, according to your own 
showing, that requires their recall, and that too upon terms which 
cannot but promote the declared purposes of those orders, if .hy 
remain to be promoted. I say " without any adequate necessity, 
according to your own showing ;" for I am persuaded, Sir, you 
do not mean to tell us, as upon a hasty perusal of your answer 
to my note might be imagined, that those rights and interests are 
to be set at nought, lest " a doubt should remain to distant times 
of the determination and the ability of Great Britain to have con- 
tinued her resistance," or that your orders may indefinitely give a 
new law to the ocean, lest the motive to their repeal should be 
mistaken by your enemy. If this might, indeed, be so, you will 
permit me to say that, highly as we may be disposed to prize the 
firm attitude and vast means of your country at this eventful mo- 
ment, it would possibly suggest to some minds a reluctant doubt 
on the subject of your observation," that the strength and power 
of Great Britain are not for herself only, but for the world." 

" I might also have been led to intimate that my proposal 
would apparently lose nothing by admitting that, " by some un- 
fortunate concurrence of circumstances, without any hostile inten- 



[ 412 ] 

tion, the American embargo did come in aid of " the before 
mentioned blockade of the European continent, precisely at the 
very moment when, if that blockade could have succeeded at all, 
this interposition of the American government would most effec- 
tually have contributed to its success."' Yet I should probably 
hav^ thought myself bound to remind you that, whatever may be 
the truth of this speculation, the same embargo withheld our 
tonnage and our productions from that communication with the 
colonies of your enemies and with the European continent, which 
you had asserted your right to prevent ; which, as a direct com- 
munication, (with the continent) you had in fact prohibited; 
which, even through British ports, or in other qualified forms, you 
had professed to tolerate, not as that which could be claimed, but 
as an indulgence that could at any time be withdrawn ; which, 
as a traffic for the United States to engage in, you had at least 
discouraged, not only by checks and difficulties in the way of its 
prosecution, but by manifesting your intention to mould it into 
all the shapes which the belligerent, fiscal, or other peculiar 
policy of Great Britain might require, and to subject it to the 
exclusive jurisdiction of her municipal code, armed with all the 
prerogatives of that universal law to which nations are accus- 
tomed to look for the rights of neutral commerce." 

Mr. PiNKXEv to Mr. JMadison. 

Private. " London, October 11th, 1808. 

" Dear Sir, — I am not able to judge whether ray reply ta 
Mr. Canning's letter (enclosed in my public despatch) will be 
approved by the President. I need not say that I hope it will. 
At any rate it can do no harm, as it is simply my act. What will 
be its reception here I know not. If ill received, as perhaps it 
may be, alth.>ut.'h perfectly polite, it can affect only myself. This 
last reflection suggests another. I can say with perfect truth 
that I have no desire to remain here a moment longer than I 
ought. Dispose of me, therefore, as shall be thought best, and 
do not think that I am inclined to overrate myself, if I add, that 
I beg you in any event to be assured of my unshaken attachment 
and best services. 



[ 413 ] 

" Mr. Canning's answer to my note and the accompanying 
letter will, no doubt, be well considered and thoroughly under- 
stood. I may misconceive them, but I suppose them to be at 
once insulting and insidious ; and have endeavoured in my reply 
to counteract their purposes without giving just cause of offence. 

" I need not dissect to you these papers ; but I must make 
one remark upon them. The answer contains an insinuation, 
scarcely to be mistaken, that our embargo was concerted with 
France,* and the letter endeavours to provide evidence of that 
concert by its account of what I said to Mr. Canning upon the 
nature and origin of the embargo. It has always, as you know, 
been a favourite purpose here to make out that the President 
knew nothing of the British orders of November, at the date'of 
the message recommending that measure. The inference from 
this fact once established, would be, among other things, that 
there could be no inducement for including Great Britain in the 
embargo but an attachment to the French system of " a block- 
ade of the continent." You will find, if occasion should arrive, 
that we shall be accused by this government, much more dis- 
tinctly than in Mr. Canning's paper, of having been parties to 



* " The governuK^nt of the United States is not now to be informed that 
the Berlin decree of Novetnber 21st, 1805, was the practioal commpnce- 
ment of an attempt, not merely to check or impair the prosperity of Great 
Britain, but utterly to annihilate her politic;-*! existence, through ihe rnin 
of her commercial prosperity ; that in this nttempt almost all 'he powers 
of the European continent have been compelled, more or less, to co-ope- 
rate ; and that the American embargo, though most assuredly not intended 
to that end, (for America can have no real interest in the subversion of 
the British power, and her rulers are too enlightened to act from any im- 
pulses against the real interest of their country,) but by some untortunate 
concurrence of circumstances, without any hostile intention, the American 
embargo did come in aid of the " blockade of the European contin- nt," 
precisely at the very moment when, if that blockade could have succpeded 
at all, this interposition of the American government would most effec- 
tually have contributed to its success. 

" To this universal combination, his Majesly has opposed a temperate, 
but a detertpined retaliation upon the enemy ; trusting that a firm resist- 
ance would defeat this project, but knowing that the smallest concession 
would infalUbly encourage a perseverance in it." 

53 



( 414 ) 

what that paper calls the " universal combination^ I have 
thought it my indispensible duty to repel in few words the above 
insinuation without appearing to understand it, and, in order to 
defeat the intended proof of it, to state explicitly what I really 
did say to Mr. Canning about the embargo. You will, I am 
persuaded, be of opinion that the course I have pursued was ab- 
solutely forced upon me. INotbing could be more disagreeable 
than such a discussion ; but I think I should have forgotten what 
was due to ray country's honour, as well as to my own, if I had 
declined it,* 



* " My suggestions were to the following effect: that I believed that uo 
copy of your orders of November had arrived in the United States at the 
date of the President's message ; that a recent change in the conduct of 
France to our prejudice did appear to be known ; that intelligence had 
been received, and a belief entertained of your intention to adopt some 
furtiier measures as a measure of relaliation against France, by which our 
commerce and our rights would be affected ; that there was reason to con- 
clude that you had actually adopted such a measure ; that (as I collected 
from American newspapers) this had appeared from private letters and 
the newspapers of this country received in the United States some days 
beion; the message of the President, and probably known to the govern- 
ment ; that, in a word, varjous information concurred to show that our 
trade was likely to be assailed by the combined efforts of both the bellige- 
rent parties ; and that the embargo was a measure of wise and peaceful 
precaution, adopted under the view ot reasonably anticipated peril." 

[The nature ot the evidence upon which the embargo was recommended 
in the President's message to Congress of the 18th Dec. 1807, is not stated 
so strongly by Mr. Piukney in the above extract as it might have been, 
had he known at the time all the facts connected with it. I have been 
informed from the highest authority that a copy of the British orders in 
council of jNoveniber 11th, 1807, as printed in an English newspaper, 
stating them to be ready in that lorm to be signed and issued, was actually 
lying on the Presirlent's table at the time when the message was sent. Be- 
^des the i-recise warning contained in the newspaper, it was generally 
understood that some such measure was contemplated by the British 
cabinet. Among other grounds for this belief was the following passage in 
a private letter to Mr. Madison, of October 5, 1807, from a very intelligent 
and close observer in London of the iudicated views of the cabinet to- 
wards this country : " The Gazette of Saturday has gone by without an- 
nouncing the injurious blockade of all French ports and ail ports under the 



[415 ] 

" 1 look with anxiety for the packet. It will not, I trust, appear 
that we are ready to submit to what (ireat Britain now declares 
to be her determination, noth withstanding that " his Majesty 
would gladly facilitate the removal of the American Embargo 
as a measure of inconvenient restriction upon the American 
people /" 

" I send you English newspapers, and the 1st and 2d parts of 
vol. VI. of Robinson's Admiralty Reports." 



influence of France, which was threatened all the week, and very gene- 
rally expected." Another letter from the same of Oct. 11th, adds, " two 
more Gazetl s have been published without aunounciug the rigorous 
blockade, one of them as late as last night. I hope they have thought 
better of it." 

Although it is true therefore that no official evidence existed in this 
country of the orders in council when the embargo was recommended, 
there was a moral certainty in this evidence, connected with all the facts 
and circumstances referred to by Mr. Pinkuey, and more distinctly enu- 
merated by Mr. Brougham m his speech on the orders in council, which 
warranted the measure, and which was so speedily confirmed by official 
intelligence. To this view of the case the language of the message was 
accommodated, and the subsequent message of February 2, 1808, founded 
on nfficial intormatiou of the orders, comports with the idea that they had 
been unofficially known when the provident measure of the embargo was 
recommended. Speaking of the circumstances under which the measure 
was adopted, Mr. Brougham remarks : " If it be said that this measure 
of embargo wTrS adopted sudtlenly (a charge which I think cannot be attri- 
buted to il) I answer that if it was to be done at all, it behoved to be done 
with vigour and promptitude, the very moment the government of that 
country perceived that it was called for by the measures which we had 
adopted. As soon as this unexampled attack upon their navigation, and 
encroachmf nt upon their privileges was known, nay, the instant that this 
unheard of aggression was suspected to be in our contemplation, the 
United States were obliged, not to resent it, indeed, lor it had not yet 
attacked them; but at least to provide against its certain efTecIs by some 
measure of precaution. Therelore I say let it not be argued that the 
suddenness of this precautionary measure, a measure in its very nature 
sudden and applicable to an unexpected and pressing emergency, affords 
any ground for believing that the orders in council were not the occasion 
of it."] 



[416 ] 



Mr. PiNKNEY to Mr. Madison. 

Private. " London, November 2d, 1808. 

" Dear Sir, — You will have discovered some weeks ago, that 
the hope which I had entertained of a satisfactory issue of my 
discussion with Mr. Canning was unfounded. I trust it will be 
thought that the experiment has been completely made, and that 
no clue can be found to maintain that every thing has not been 
done to render our overture acceptable. I tried it in every shape, 
and endeavoured to recommend it in every mode, even at the 
hazard of indiscretion, in vain. Nothing could have been more 
unexpected than Mr. Canning's letter to me, accompanying the 
official answer, which I am sure you will understand, to my pro- 
posal. I feel that it is not such a letter as I could have persuaded 
myself to write in similar circumstances. That feeling is suffi- 
ciently manifest in my reply ; which, nevertheless, I believe to be 
so carefully polite that it cannot be deemed to be in any respect 
out of rule. 

" You will observe that in my official note of the 23d of Au- 
gust, as well as in the last mentioned paper, I have had in view 
Mr. Canning's speech of the 24th of June, to which your pri- 
vate letter alludes. Whether his speech be correctly reported I 
know not ; but his letter to me of the 23d of September, (which 
will not, I am confident, bring any accession of honour to him,) 

renders it quite probable." 

********** 



Mr. ]Madison to Mr. Pinkney. 

Private. "Washington, November 9th, 1808. 

********** 

" The conduct of the British cabinet in rejecting the fair offer 
made to it, and even sneering at the course pursued by the Ignited 
States, piove at once a very determined enmity to them, and a 
confidence that events were taking place here which would re- 
lieve it from the necessity of procuring a renewal of commercial 



[417 ] 

intercour&e by any relaxation on its part. Without this last 
supposition it is difficult tu believe that, with the prospects at 
home and abroad in Europe, so great a folly would have been 
committed. As neither the public nor Congress have yet had 
time to disclose the feelings which result from the posture now 
given lo our relations with Great Britain, I cannot speak posi- 
tiv+'ly on that subject. I shall be much disappointed, however, if 
a spirit of independence and indignation does not strongly rein- 
force the past measures with others which will giv« a severity to 
the contest of privations at least, for which the British govern- 
ment would seem to be very little prepared in any sense of the 
word. It was perhaps unfortunate, that all the intelligence from 
this country, previous to the close of your correspondence with 
Mr. Canning, was from a quarter and during a period most like- 
ly to produce miscalculations of the general and settled disposi- 
tions. You will see in the newspapers sufficient evidence of the 
narrow limits to which discontent was confined, and it may rea- 
sonably be expected that the counter-current will be greatly 
strengthened by the communications now going forth to the 
public. 

" Among the documents communicated confidentially to Con- 
gress, I hope you will excuse us for including (with the exception 
of some small passages) your private letter of Sept. 21.* The 
excellent views which it appeared to take of our affairs with 
Great Britain, were thought to justify the liberty. They coin- 
cided indeed so entirely with the sentiments of the executive, and 
were so well calculated to enlighten the legislative body, that it 
was confidently presumed the good effect would outweigh the ob- 
jections in ihe case. A like liberty vv^as taken with a private let- 
ter from Gerveral Armstrong." 



Mr. Madison to Mr. Pinkney. 

" Washington, Dec. 5th, 1808. 
" Dear Sir, — I have little to add to the printed communica- 
tion accompanying ray official letter of this date. Congress 

* See page 402. 



[ 418 ] 

seems to be sufficiently determined, as you will perceive, to re- 
sist the unjust and insulting edicts of the belligerents, and differ 
only as to tlie mode best suited to the end. The disposition to 
prefer war to the course hitherto pursued, Is rather gaining than 
losing ground, and is even promoted by the efforts of those most 
opposed to war with Great Britain, who concur in deciding 
against submission, and at the same time contend that withdraw- 
ing from the ocean is submission. It is very questionable, how- 
ever, whether a preference of war to be commenced within the 
present session, is so general in Congress, or so much looked for 
by the nation, as to recommend the measure. Whether, in case 
the measure should be declined, any such substitute providing for 
war during the recess, as I have intimated in one of my last let- 
ters, will be acceptable, is more than I can undertake to say^ 
nothing of the sort having been brought into conversation. 

" I find by conversation with Mr. Erskine, that he is himself 
favourably impressed by the documents laid before Congress 
as to the fairness of our conduct towards the two belligerents, 
and that he is willing I should believe that the impression will be 
the same on his government. As it may be conceived by him, 
however, to be politic to lull our feelings and suspicions, I am 
the less sure that he calculates on any change in the councils o f 
his government likely to do justice to those of this government. 

" As to the state of the public mind here, you will sufficiently 
collect it from the printed information now forwarded. I can- 
not believe that there is so much depravity or stupidity in the 
eastern States, as to countenance the reports that they will sepa- 
rate from their brethren rather than submit any longer to the sus- 
pension of their commerce. That such a project may lurk with- 
in a junto, ready to sacrifice the rights, interests, and honour of 
their country to their ambitious or vindictive views, is not to be 
doubted ; but that the body of an intelligent people, devoted to 
commerce and navigation, with few productions of their own, 
and objects of unceasing jealousy to Great Britain on account of 
their commerce and navigation, should be induced to abandon the 
southern States, for which they are the merchants and carriers, 
in order to enter into an alliance with Great Britain, seems to be 
impossible. What sort of a commercial treaty could be made 



[ 419 ] 

between such parties ? In truth the obstacles to one between the 
United States and that nation, arise almost wholly from the pa- 
tronage by the former of the maritime rights and interests of the 
eastern States as a portion of the confederacy. A treaty between 
such parties, if made at all, must be political, not commercial, 
and have in view modifications of government and aggrandize- 
ment of individuals, and not the public good." 

Mr. PuNKNEY to Mr. Madison. 

Private. " London, Jem. l6, 1809. 

******** *# 

*' Mr. Sawyer's communication has been published (for the first 
time in England) in the Observer of yesterday as an interesting 
document. I question much if the daily papers will follow the 
example. 

" I enclose a curious extract from the Anti-Jacobin Review 
and Magazine for November last, brouglit to me by a friend a 
few days ago. I have not seen the book itself. Burr is at Edin- 
burgh. The enclosed extract of a letter, relative to him, from 
0ne of my friends there, may amuse you. 

" The late proceedings of the Legislature of Massachusetts 
surpass my worst expectations : — Those of Congress equal my 
best. The advantage in debate is triumphantly with the friends 
of the embargo. The only speech sent to me in a pamphlet, 
(Mr. Giles',) has been given to a leading member of the House of 
Lords, together with the published documents, the very able re- 
port of the committee of the House of Representatives, and the 
answer of the majority of the Massachusetts members to the 
Legislature of that State. I have sent a copy of each of these 
documents to Gen. Armstrong by a very uncertain opportunity, 
and have distributed the rest among members of Parliament. I 
wish you had sent me more. Our overture, connected with the 
late proceedings in Congress and the publication of the corres- 
pondence, &c. has 1 know done much good. 

" Parliament is about to assemble under the most gloomy aus- 
pices. Our affairs will be amply and zealpusly discussed. -I 
know not how ministers can justify their conduct towards us. 



[ 420 ] 

i\^. PiNKNEY to Mr. Madison. 

"London, Jan. 23d, 1809. 
'• Dear Sir, — I dined at Mr. Canning's with the corps diplo- 
matique, on the 18th, the day appointed for the celebration of 
the Queen's birth-day. Before dinner he came up to me, and, 
entering into conversation, adverted to a report which he said 
had reached him, that tlie American ministers (here and in 
France) were about to be recalled. I replied that I was not 
aware that such a step had already been resolved upon. He 
then took me aside, and observed, that, according to his view 
of the late proceedings of Congress, the resolutions of the 
House of Representatives in committee of the whole, appeared 
to be calculated, if passed into a law, to remove the impedi- 
ments to an arrangement with the United States upon the two 
subjects of the orders in council and the Chesapeake — that the 
President's proclamation had in fact formed the great obstacle to 
tht' adoption of what we had lately proposed, and that t^very 
body knew that it had formed the sole obstacle to adjustment in 
the other affair — that the renewal of commercial intercourse with 
America, while that proclamation remained in force, would have 
been attended with this embarrassment, that British merchant ves- 
sels, going into our ports, would have found there the commission- 
ed cruizers of the enemy in a capacity to assail them as soon as 
they should put to sea ; while British armed vessels, having no 
asylum in those ports, would not have been equally in a situation 
to afford them protection — that if this was not insisted upon at 
large in his reply to my official letter of the 23d of August, it 
was because it was difficult to do so without giving to that paper 
somewhat of an unfriendly appearance — that as the above men- 
tioned embarrassment, produced by the proclamation of the Presi- 
dent, and the right which Great Britain supposed she had to com- 
plain of the continuance of that proclamation, proceeded, not 
from the exclusion of British ships of war from American ports, 
but from the discrimination in that respect between Great Britain 
and her adversaries ; and as the resolutions of the House of Re- 
presentatives took away that discrimination, although not perhaps 
in the manner which Great Britain could have wished, thsy were 



[ 421 ] 

willing to consider the law to wliich the resolutions were prepa- 
ratory, as putting an end to the difficulties which prevented 
satisfactory adjustments with us. He then -said that they were, 
of course, desirous of being satisfied by us, that the view 
which they thus took of the resolutions in question was correct ; 
and he intinaated a wish that we should say that the intention of 
the American government was in conformity with that view. He 
added that it was another favourable circumstance that the non- 
importation system was about to be applied to all the belligerents. 

As all this occurred rather unexpectedly, (although my recep- 
tion at court, and other circumstances of much more consequence, 
had seemed to give notice of some change,) and as I did not think 
it advisable to say much, even informally, upon topics of such 
delicacy at so short a warning, I proposed to Mr. Canning that 
I should call on him in the course of a day or two for the pur- 
pose of a more free conversation upon what he had mi^ntioned, 
than was then practicable. To this he readily assented ; and it 
was settled that I should see him on the Sunday following, (yes- 
terday,) at 12 o'clock, at his own house. I thought it prudent, 
however, to suggest at once, that the resolutions of the House of 
Representatives struck me as they did Mr. Canning; and (sup- 
posing myself to be warranted by your private letter of the 25th 
of November, in going so far) I added, that although it was evi- 
dent that if Great Britain and France adhered to their present sys- 
tems, the resolutions had a necessary tendency to hasten a disa- 
greeable crisis, I was sure that my government^ retaining the 
spirit of moderation which had always characterized it, would 
be most willing that Great Britain should consider them as cal- 
culated to furnish an opportunity for advances to repewed inter- 
course and honourable explanations. 

" The interview yesterday was of some length. An arrange- 
ment with me was out of the question. An assurance from me 
as to the intentions of the American government in passing (if 
indeed it had passed) an Exclusion and Non-Intercourse law 
applicable to all the powers at war, was equally out of the 
question. I had no authority to take any official stej) in the 
business ; and 1 should not have taken any, without further in- 
structions from you founded upon the new state of things, even 

54 



[ 422 ] 

if my former authority had not been at an end. My object, 
thtrefore, was merely to encourage suitable approaches on the 
part of the government by such unofficial representations as I 
might be justified in making. 

" I will not persecute you with a detail of my suggestions to 
Mr. Canning, intended to place the conduct of our government in 
its true light, and to second the effect which its firmness and wis- 
dom had manifestly produced. It will be sufficient to state that, 
while 1 declined (indeed it was not pressed) giving, or allowing 
Mr. Canning to expect, any such assurances as I had understood 
him to allude to in our last conversation, I said every thing which 
I thought consistent with discretion, to confirm him in his dispo- 
sition to seek the re-establishment of good understanding with us, 
and, especially to see in the expected act of Congress, if it should 
pass, an opening to which the most scrupulous could not object, 
as well as the strongest motives of prudence for such advances, 
before it should be ton late, on the side of this country, as could 
scarcely fail to produce the best results. 

" It was of some importance to turn their attention here, 
without loss of time, to the manner of any proceeding which 
might be in contemplation. It seemed that the resolutions of the 
House of Representatives, if enacted into a law, might render it 
proper, if not indispensible, that the affair of the Chesapeake 
should be settled at the same time with the affair of the orders 
and the embargo ; and this was stated by Mr. Canning to be his 
opinion and his wish. It followed that the whole matter ought 
to be settled at Washington ; and, as this was, moreover, desir- 
able on various other grounds, I suggested that it would be well 
(in case a special mission did not meet their approbation) that the 
necessary powers should be sent to Mr. Erskine ; but I offered 
my inteivention for the purpose of guarding them against deficien- 
cies in those powers, and of smoothing the way to a successful 
issue. Mr. Canning gave no opinion on this point. 

" Although I forbear to trouble you in detail with .what I said 
to Mr. Canning, it is fit that you should know what was said by 
'him on every point of importance. 

" In the course of conversation he proposed several questions 
for reflection, relative to our late proposal, which when that pro- 



[ 423 ] 

posal was made were not even glanced at. The principal were 
the two following : 

"1. In case they . should now wish, either through me, or 
through Mr. Erskine, to meet us upon the ground of our late over- 
ture, in what way was the effectual operation of our embargo as to 
France, after it should be taken off as to Great Britain, to be se- 
cured ? It was evident, he said, that if we should do no more than 
refuse clearances for the ports of France, &c., or prohibit, under 
penalties, voyages to such ports, the effect which my letter of the 
21st of August and my published instructions professed to have in 
view would not be produced ; for that vessels, although cleared 
for British ports, might, when once out, go to France instead of 
coming here. That this would in fact be so (whatever the penal- 
ties which the American law might denounce against offenders) 
could not, he imagined, be doubted ; and he presumed, therefore, 
as he could see no possible objection to it (on our part) that the 
government of the United States would not, after it had itself 
declared a commerce with France illegal, and its citizens who 
should engage in it delinquents, complain if the naval force of 
this country should assist in preventing such a commerce. 

" 2. He asked whether there would be any objection to 
making the repeal of the British orders and of the American em- 
bargo contemporaneous ? He seemed to consider this as indis- 
pensible. Nothing could be less admissible, he said, than that 
Great Britain, after rescinding her orders, should, for any time, 
however short, be left subject to the embargo in common with 
France whose decrees were subsisting, with a view to an experi- 
ment upon France, or with any other view. The United States 
could not upon their own principles apply the embargo to this 
country one moment after the orders were removed, or decline 
after that event to apply it exclusively to France and the powers 
connected with her. Great Britain would dishonour herself by 
any arrangement which should have such an effect, &c. 

" You will recollect that my instructions (particularly your 
letter of the 30th of April) had rather appeared to proceed upon 
the idea that the British orders were to be repealed before the 
embargo was removed as to England ; and it is probable that a 
perusal of these instructions had led to Mr. Canning's inquiry. 



[ 424 ] 

" Upon the whole I thought I might presume that this govern- 
ment had at last determined to sacrifice to us their orders in 
council in the way we had before proposed, (although Mr. Can- 
ning once, and only once, talked o( amendment and modification^ 
which I immediately discouraged, as well as of repeal,) and to 
offer the amende honorable, in the case of the Chesapeake, pro- 
vided Congress should be found to have passed a law in conform- 
ity with the resolutions of the House of Representatives. I ought 
to say, however, that Mr. Canning did not precisely pledge him- 
self to that effect ; and that the past justifies distrust. The result 
of the elections in America — the unexpected firmness displayed 
by Congress and the nation — the disappointments in Spain and 
elsewhere — a perceptible alteration in public opinion here since 
the last intelligence from the United States — an apprehension of 
lo-^ing our market, of having us for enemies, &c., have appa- 
rently made a deep impression upon ministers ; but nothing can 
inspire perfect confidence in their intentions but an impossible 
forgetfulness of the past, or the actual conclusion of an arrange- 
ment with us. In a few days 1 may calculate upon hearing from 
you. If Congress shall have passed the expected act, the case 
to which Mr. Canning looks will have been made, and he may 
be brought to a test from which it will be difficult to escape. 
Whatever may be my instructions I shall obey them with fidelity 
and zeal ; but I sincerely hope they will not make it my duty to 
prefer adjustment here to adjustment in Washington. I am 
firmly persuaded that it will be infinitely better that the business 
should be transacted immediately with our government ; and, if 
I should be at liberty to do so, I shall continue to urge that 
course. 

" You will not fail to perceive that the ground upon which it is 
now pretended that our proposition of last summer was rejected, 
is utterly inconsistent with Mr. Canning's note, in which that 
proposition is distinctly rejected upon other grounds, although in 
the conclusion of the note, the President's proclamation is intro- 
duced by the bye. Besides, what can be more shallow than the 
pretext of the su|)posed embarrassment ! 

" I took occasion to mention, at the close of our conversation 
the recent appointment of Admiral Berkeley to the Lisbon sta- 



L 425 ] 

tion. Mr. Canning said ihat, with every inclination to consult 
the feelings of the American government on that subject, it was 
im[)ossible for the admiralty to resist the claim of that officer to be 
employed, after such a lapse of time since his recall from Hali- 
fax, without bringing him to a court-martial. The usage of the 
navy was in this respect different from that of the army. He 
might, however, still be brought to a court-martial — and in what 
he had done, he had acted wholly without authority, &c. &c. 1 
did not purpose to enter into any discussion upon the subject, 
and contented myself with lamenting the appointment as un- 
fortunate. 

" The documents laid before Congress and published have 
had a good effect here. Your letter to Mr. Erskine I have caus- 
ed to be printed in a pamphlet, with my letter to Mr. Canning 
of the 23d of August, and his reply. The report of the Com- 
mittee of the House of Representatives is admitted to be a most 
able paper, and has been published in the Morning Chronicle. 
The Times newspaper (notwithstanding its former violence 
against us) agrees that our overture should have been accepted. 
'• The opposition in parliament is unanimous on this subject, 
although divided on others. Many of the friends of government 
speak well of our overture, and almost every body disappro\es 
of Mr. Canning's note. The tone has changed too, in the city. 
In short, I have a strong hope that the eminent wisdom of the 
late American measures will soon be practically proved to the 
confusion of their opponents. 

" I refer you to the newspapers for news (in the highest de- 
gree interesting) and for the debates. See particularly Mr. 
Canning's speech in the House of Commons, on the 19th, as 
reported in the Morning Chronicle. 

" P. S. As it was possible that the resolutions of the House of 
Representatives might not pass into a law, I endeavoured to ac- 
commodate my conversation of yesterday to that possibility, at 
the same time that I did not refuse to let Mr. Canning see that I 
supposed the law would pass. 

" I have otnitted to mention that we spoke of Mr. Sawyer's 
letter in our first conversation, and that during the whole of the 
evening Mr. Canning seemed desirous of showing, by moi e than 



[ 426 ] 

usual kindness and respect, that it bad made no unfavourable 
impression. I incline to think that it has rather done good than 
harm. 

" I have marked this letter Private, because I understood Mr. 
Canning as rather speaking confidentially than officially, and I 
certainly meant so to speak myself; but you will, nevertheless, 
make use of it as you think fit. Of course it will not in any 
event be published. 

" A third embargo breaker has arrived at Kinsale, in Ireland, 
on her way to Liverpool. She is called the Sally, and is of Vir- 
ginia, with more than three hundred hogsheads of tobacco," 

Mr. Madison to Mr. Pinknev. 

Private. " Washington, Feb. MtJi, 1809. 

" Dkar Sir, — My official letter by this conveyance leaves but 
little to be added to its contents. You will see with regret the 
difficulty experienced in collecting the mind of Congress to some 
proper focus. On no occasion were the ideas so unstable and so 
scattered. The most to be hoped for at present is that a respec- 
table majority will finally concur in taking a course not essential- 
ly dishonouring the resolution, not to submit to the foreign edicts. 
The last vote taken, as stated in reports of their proceedings, 60 
odd against HO odd, implies that a non-intercourse with Great 
Britain and France, including an embargo on exports to those 
two nations, will be substituted for the general embargo existing ; 
and it is not improbable that 8 or 10 of the minority who pre- 
fer a simple adherence to the latter, will, on finding that it can- 
not be retained, join in the non-intercourse proposed. It is im- 
possible, however, to foretel the precise issue of such complicated 
views. 

" If the non-intercourse as proposed should be adopted, it will 
leave open a trade to all the continent of Europe, except France. 
Among the considerations for not including the other powers 
with France, were, 1st, the certainty that the Russian edict, of 
which I enclose a copy, does not violate our neutral rights : and 
2dly, the uncertainty as to most of the other powers, whether 
they have in force unlawful edicts or not. Denmark, it is ascer- 



[ 427 ] 

tained, though not officially notified, is under the same descrijDtiou 
as Russia. Holland and Spain are the only two countries which 
are known to have copied the several decrees of" France. With 
respect to Holland, it is understood that she will favour, as far as 
she can, an intercourse with neutrals, in preference to a co-opera- 
tion with France. It would be imitating the cruelty of the belli- 
gerents to retaliate the reluctant injuries received from such a 
quarter. With respect to Spain, the same remark is applicable, 
even if her decrees should not have been revoked. Besides this, 
it is particularly important not to extend the non-intercourse to 
the Spanish colonies, which whilst a part of Spain would be 
within the effect of the Spanish decrees on the question. It iST 
probable, also, that if Grec.t Britain should lose or withdraw her 
armies from Spain, she will endeavour to mitigate the odium by 
permitting at least all neutral supplies ; or rather not to increase 
the odium and the evil by subjecting them to the famine threaten- 
ed by the exhausted state produced by the war. As another mo- 
tive, she may be expected to consult the sympathies with the 
parent nation of the Spanish colonies, to which her attention 
will doubtless be turned in the event of a subjugation of Spain. 
As to Portugal, there can be little doubt that the British cabinet 
will have prudence, if not humanity, enough not to oppose a trade 
supplying that country with the necessaries of life. 

" On what principle is it that Great Britain arrests our trade 
with Russia, or even Denmark ? Neither of those powers have 
edicts to countenance her retaliations ; nor can the former be re- 
garded as under the sway of France in the sense applied to some 
others. Is it that she prohibits the British flag ? But that she 
has a right to do — England does the same. Is it that she pro- 
hibited all trade with England under a neutral flag ? That she 
has an equal right to do, and has equally examples in the Bri- 
tish code justifying it. I have been frequently asked whether a 
trade from the United States to Russia would be captured. I have 
been obliged to answer that, as it came under the letter of the 
British orders, though excluded by what was held out as the prin- 
ciple of them, it was to be inferred from the spirit and practice of 
British cruizers and courts, that such would be the fate of vessels 
making the experiment. ) 



[ 428 ] 

" The repeal of the embargo has been the result of the opinion 
of many that the period prescribed by honour for that resort 
against the tyrannical edicts against our trade had passed by, but 
principally from the violence exerted against it in the eastern 
quarter, which some wished to assuage by indulgence, and others 
to chastise into an American spirit by the lash of British spolia- 
tions. I think this effect begins to be anticipated by some who 
were most clamorous for the Tepeal. As the embargo is disap- 
pearing, the orders and decrees come into view with the commer- 
cial and political consequences which they cannot fail to produce. 
The English mai"ket will at once be glutted, and the continental 
markets, particularly for the sugar and coffee in the eastern ware- 
houses, will be sought at every risk : Hence captures and cla- 
mours against the authors of them. It cannot, I think, be doubted 
that if the embargo be repealed and the orders be enforced, war 
is inevitable, and will perhaps be clamoured for in the same 
quarter which now vents its disappointed love of gain against the 
embargo. 

" There is reason to believe that the disorganizing spirit in the 
east is giving way to the indignation of all parties elsewhere 
against it. It is repressed in part also by the course of events 
abroad, which lessens the prospect of British support in case of a 
civil war." 

" P. S. The mode in which Mr. Canning's letter got to the 
press is not ascertained. I have seen it stated, on what authority 
I know not, that the copy was obtained from the minister here, 
and was to have been published in the first instance at Halifax ; 
but being shown by the bearer to certain British partizans of 
more zeal than discretion at Boston, he was prevailed on to hand 
it at once to the Palladium, the paper in which it first appeared." 

Mr. PiNKNEY to Mr. Madison. 

Private. " London, May 3d, 1809- 

" Drar Sir, — I have had the honour to receive your letter oi 
the 17th of March, and thank you sincerely for your good 
wishes. Permit me to offer you my cordial congratulations upon 



[ 429 ] 

the manner in which yon have been called to the Presidency. 
Such a majority at such a time is most honoiirahle to oui country 
and to you. My trust is that with the progress of your ulminis- 
t ration your friends will grow in strength and numbers, and that 
the people will see in your future labours new titles to praise and 
confidence. You have my cordial wishes for your fam^ and 
happiness, and for the success of all your vi^ws for the public 
good. 

" The publication of my letter of the 21st of September has 
not had the effect which malice expected and intended ; and it is 
not im|)robable that it has contiibuted to produce a residt di- 
rectly the reverse of its obvious purpose. Such an incident, 
however, is injurious to the character of our country, but it will 
doubtless inspire at home such a distrust of the honour of mem- 
bers of Congress, who could condescend to so low and malignant 
a fraud, as to present a repetition of it. 

" My letter to the Secretary of State will announce to you the 
change which has taken place here on the suiiject of the orders 
in council.* I venture to hope that this measure will open the 
way to reconcilement between this country and America without 
any disparagement of our interests or our honour. I have not 
time (as the messenger leaves town in the morning and it is now 
late at night) to trouble you with a detailed statement of my no- 
tions on this subject — but I will presume upon your indulgence 
for a fevv words upon it. 

" The change does undoubtedly produce a great effect in a 
commercial view, and removes many of the most disgusting fea- 
tures of that system of violence and monopoly against which our 
efforts have been justly directed. The ordeis of November 
were in execution of a sordid scheme of commercial and fiscal 



* [An order in council was issued on the 26th of April, 1809, by which the 
blockade declared by the previous orders was restricted to the ports of 
France and Holland as far north as the river Ems, inclusively, to the colo- 
nies of both those powers, and to the ports in the north of Italy from Orbt- 
tello and Pesaro inclusively : and the duties on the transit of goods through 
British ports to those of the European continent, which had bet-n established 
by the f Dimer orders and the act of Parliament to carry them hito effect, 
were also repealed by an order of December. 1808.] 

55 



[ 430 ] 

advantage, to which America was to be sacrificed. They were 
not more atrocious than mean. The trade of the world was to 
be forced through British ports and to pay British imposts. As 
a belligerent instrument the orders were nothing. They were a 
trick of trade — a huckstering contrivance to enrich Great Britain 
and drive other nations from the seas. The new system has a 
better air. Commerce is no longer to be forced through this 
country. We may go direct to Russia, and to all other countries, 
except to France and Holland, and the kingdom of Italy and 
their colonies. The duty system is at an end. We may carry 
as heretofore enemy productions. The provision about certifi- 
cates of origin is repealed. That about prize ships is repealed 
also. What remains of the old measure is of a belligerent cha^ 
racter, and is to be strictly executed as such. No licenses are 
to be granted even to British merchants to trade to Holland or 
France. 

" There can be no question that this change gives us all the 
immediate benefits which could have arisen out of the acceptance 
of our overture of last year. It does not indeed give us the same 
claim to demand from France the recall of her edicts : but in 
every other respect it may be doubted whether it is not more 
convenient. If that overture had been received, a difficulty 
would have occurred as to the mode of making it effectual, as 
mentioned in my private letter of the 23d of January. And if 
we had agreed, either formally or by mere understanding, to Mr. 
Canning's suggestion mentioned in the same letter, the substance 
of the thing would have approached very nearly to what has since 
been done. But at any rate the manner of the transaction is open 
to negociation, and the intimation to that effect which has been 
made to me may be an inducement to resume a friendly attitude 
towards Great Britain, and to put the sincerity of that intimation 
to the test. 

" For the gain actually obtained we pay no price. We give no 
pledge of arty sort, and are not bound to take any step whatever. 
The embargo is already repealed after the end of the approach- 
ing session of (-'ongress. The non-intercourse law will expire at 
the same time. If neither should be continued at the approaching 
session, negociation may be tried for obtaining what is yet to be 



[ 431 ] 

desired, and, that failing, our future measures are in our own 
power. 

" I am not sure that we have not got rid of the most obnoxious 
portion of the British Orders in the most acceptable way. To 
what is left, it is impossible that either the government or the 
people of this country can be much attached. Having obtained 
gratuitously the present concessions, we are warranted in hoping 
that the rest, diminished in value, flattering no prejudices, ad- 
dressing itself to no peculiar interests, and viewed with indiffer- 
ence by all, will be easily abandoned. In the mean time our 
peace is preserved, and our industry revived. France can have 
no cause of quarrel with us, nor we any inducement to seek a 
quarrel with her. The United States are no parties to the recent 
British measure, as a measure of pressure and coercion upon 
France. We may trade in consequence of it, and endeavour to 
obtain farther concessions, without the hazard of war widi either 
party; while what has already been conceded saves our hnnour 
and greatly improves our situation. Our overture of last summer, 
if accepted, must have produced war with France, unless France 
had retracted her decrees, which was greatly to be doubted. The 
recent British measure, not being the result of an arrangement 
with America, will not have that tendency. For my own part, I 
have always believed that a war with France, if it could be 
avoided, was the idlest thing we could do. We may talk of 
" unfurling the Republican banner against France" — but, when 
we had unfurled our banner, there would be an end of our ex- 
ploits. This is precisely such a flourish as might be expected 
from a heavy intellect wandering from its ordinary track. It is 
not remembered that if we go to war with France, we shall be 
shut out from the continent of Europe, without knowing where 
it would cease to repel us. It is not remembered that in a war 
with France we might suffer, but could not act — that we should 
be an humble ally without hope of honour, and a feeble enemy 
without a chance of victory. It appears to me that the world 
would stand amazed if we, a commercial nation, whose interests 
are incompatible with war, should, upon the instigation of our 
passions, strut into the lists with gigantic France, with a meta- 
phor in our mouths, but with no means of annoyance in our 



[ 432 ] 

hands, and professing to be the champions of commerce, do just 
enough to pnivoke its destruction and make ourselves ridiculous. 
" Our Iriends in this country are all of opinion that we should 
take in good part the new order in council, and, suffering our re- 
strictive Ihws to expire, rely upon friendly negociation and a 
change of policy in this government for the further success of 
our wishes. 1 can assure you with confidence that they would 
be greatly fhsappointed and grieved if we should be found to 
take any othei course. Our triumph is already considered as a 
signal one by every body. The pretexts with which ministers 
would conceal their motives for a relinquishment of all which 
they prized in their system, are seen through ; and it is univer- 
sally viewed as a concession to America.. Our honour is now 
safe, and by management we may probably gain every thing we 
have in view. A change of ministers is not unlikely, and if a 
change happens it will be favouvable to us. Lvery thing con- 
spires to recommend moderation. 

" I need not, I am sure, make any apology for myself, even 
although you should think that less has bi'en obtained here than 
ought to have been obtained. 1 have endeavoured to do the best 
with the means put at ray disposal, and I have avoided committing 
my government. I am persuaded that all that was practicable 
has been accom|)lislied, and I have a strong confidence that 
used and followed up as your wisdom and that of the legislature 
will direct, the result will be good.'' 

Mr. PiNicNEY to Mr. Madison. 

Private. " London, Aug. \9th, 1800. 

" Dear Sir, — I have had the honour to receive your kind 
letter of the 21st of April ; and now send the last edition of War 
in Disguise as you request. 

'' American newspapers have been received here, showing that 
the disavowal of Mr. Brskine's arrangement has excited much 



[* One of the first acts of \lr. Madison's administration had been to con- 
clude an arrang-ement with the British minister at Washington, "Vlr. Erskine, 
bj which the orders in couiuil were to e rejiealed. and satislaction was to 
be given for the attack on the frigate Chesapeake, and the trade between the 



[ 433 ] 

ferment in the United States.* I cannot subdue mv first regret 
that it was iound U) be necessary at the last regular session of 
Congress to falter in the course we were pursuing, and to give 
signs of inability to persevere in a system which was on the 
point of accomplishing all its purposes. That it teas found to 
be necessary I have no doubt ; but I have great doubts wlvether, 
if it had fortunately been otherwise, we should have had any 
disavowals. It is to be hoped, however, that every thing will yet 
turn out well. That t/du will do all that can be done at this peri- 
lous moment for the honour and advantage of our country^ I am 
sure. I congratulate you heartily on the abundant proofs of 
general confidence which have marked the commencement of 
your udministration. I venture to prophesy that the\ will mul- 
tiply as you advance, and that in the maturity of your adminis' 
tration, it will be identified in the opinions of all men with the 

strength, and character, and prosperity of the State." 

********** 

" I shall be greatly deceived if France relaxes at this time from 
her decrees against neutral rights. I should rather have ex- 
pected additional rigour, if General Armstrong had not given 
me reason to expect better things The maritime arrondissement 
now so near its completion will furnish new inducements to per- 
severance in the anti-commercial system." 

[The recall of Mr. Erskine, in consequence of the refusal of 
the British government to ratify the arrangement entered into by 
him, was followed by the mission of Mr. Jackson as special envoy 
to the government of the United States. There was a general 
expectation in this country that he would be charged with conci- 
liatory explanations of the disavowal of his predecessor, and 
with proposals to be substituted for the rejected arrangement. 
But this expectation was disappointed. It was found that the 
new minister had received no authority to enter into explana- 



United States and Great Britain was to be renewed. This arrangement was 
no sooner known in England, than it wa« disavowed by the British t^overn- 
ment, as not having' been made conformably to the instructions sent to its 
minister in this country.] 



[ 434 ] 

tions relative to the rejection of the arrangement, or to substitute 
any proposal for that part of it which regarded the British or- 
ders in council. His proposals respecting the attack on the fri- 
gate Chesapeake were founded upon what the United States had 
repeatedly declared to be an inadmissible basis," that the first step 
towards an adjustment should proceed from them by a revocation 
of the President's proclamation interdicting British armed vessels 
from entering their waters. In the course of his correspondence 
with the Secretary of State, Mr. Jackson repeatedly imputed to 
the government of the United States a knowledge of the fact 
that the arrangement concluded by Mr. Erskine was not autho- 
rized by his instructions. In consequence of this offensive con- 
duct, our government refused to receive any further communi- 
cations from him, and Mr. Pinkney was instructed to explain the 
necessity of this step to the British court. At the date of the 
following letter, it would seem that he had only seen the first 
part of Mr. Jackson's correspondence, but had not then received 
its sequel and his instructions to explain to the British govern- 
ment the necessity of refusing to receive any further communica- 
tions frofn him.] 

Mr. PiNKxNEY to Mr. Madison. 

Private. " London, Dec. lOth, 1809. 

" Dear Sir, — I see with great pleasure the ground taken by 
the Secretary of State in his correspondence with Mr. Jackson 
connected with the probability that our people are recovering 
from recent delusion, and will hereafter be disposed to support 
with zeal and steadiness the efforts of their government to maintain 
their honour and character. Jackson's course is an extraordinary 
one, and his manner is little better. 

" The British government has acted for some time upon an 
opinion that its partizans in America were too numerous and 
strong to admit of our persevering in any system of repulsion to 
British injustice ; and it cannot be denied that appearances coun- 
tenanced this humiliating and pernicious opinion ; which has 
been entertained by our friends. My own confidence in the 
American people was great ; but it was shaken nevertheless. I 



[ 435 ] 

am re-HSSured, however, by present symptoms, and give myself 
up once more to hope. The prospect of returning virtue is 
cheering; and T trust it is not in danger of being obscured and 
deformed by the recurrence of those detestable scenes which 
lately reduced our patriotism to a problem. 

" The neio ministry (if the late changes entitle it to be so 
called) is at least as likely as the last to presume upon our divi- 
sions. I have heard it said that it was impossible to form a 
cabinet more unfriendly to us, more effectually steeped and dyed 
in all those bad principles which have harassed and insulted us. 
I continue lo believe that, as it is now constituted, or even with 
any modifications of which it is susceptible, it cannot last ; and 
that it will not choose to hazard much in maintaining against the 
United States the late maritime innovations. 

" The people of England are rather better disposed than here- 
tofore to accommodate with us They seem to have awaked 
from the flattering dreams by which their understandings have 
been so long abused. Disappointment and disaster have dissi- 
pated the brilliant expectations of undefined prosperity which 
had dazzled them into moral blindness, and had cheated them of 
their discretion as well as of their sense of justice. In this state 
of things America naturally resumes her importance, and her 
rights become again inteUigible. Lost as we were to the view of 
Englishmen during an overpowering blaze of imaginary glory 
and commercial grandeur, we are once more visible in the sober 
light to which facts have tempered and reduced the glare of fic- 
tion. The use of this opportunity depends upon ourselves, and 
doubtless we shall use it as we ought. 

It is, after all, perhaps to be doubted whether any thing but a 
general peace (which, if we may judge from the past, it is not 
unlikely France will soon propose) can remove all dilemma 
from our situation. More wisdom and virtue than it would be 
quite reasonable to expect, must be found in the councils of the 
two great belligerent parties, before the war in which they are now 
engaged can become harmless to our rights. Even if England 
should recall (and I am convinced she could have been, and yet 
can be, compelled to recall) her foolish orders in council, her 
maritime pretensions will still be exuberant, and many of her 



[ 436 ] 

practices most oppressive. From France we have only to look 
for what hostility to Fngland may suggest. Justice and en- 
lig itened policy are out of the question on both sides. Upon 
France, 1 fear, we have no means of acting with effect. Her 
ruler sets our ordinary means at defiance. We cannot alarm 
him for his colonies, his trade, his manufactures, his revenue. 
He would not probably be moved by our attempts to do so, even 
if they were directed exclusively against himself. He is less 
likely to be so moved while they comprehend his enemy. A 
war with France, I shall always contend, would not help our 
case. It would aggravate our embarrassments in all respects. 
Our interests would be struck to the heart by it. For our honour 
it could do nothing. The territory of this mighty power is ab- 
solutely invulnerable ; and there is no mode in which we could 
make her feel either physical or moral coercion. We might as 
well declare war against the inhabitants of the Moon or of the 
Georgian Sidus. When we had produced the entire exclusion 
of our trade from the whole of continental I* urope, and increased 
its hazards every where, what else could we hope to achieve by 
gallantry, or win by stratagem ? Great Britain would go smug- 
gling on as usual ; but we could neither fight nor smuggle. We 
should tire of so absurd a contest long before it would end, (wha 
shall say when it would end ?) and we should come out of it, after 
wondering how we got into it, with our manufactures annihilated 
by British competition, our commerce crippled by an enemy and 
smothered by a friend, our spirit debased into listlessness, and 
our character deeply injured. I beg your pardon for recurring to 
this topic, upon which I will not fatigue you with another word, 
lest I should persecute you with many. 

" The ministry are certainly endeavouring to gain strength by 
some changes. It is said that Lord Wellesley is trying to bring 
Mr. Canning back to the cabinet; and, if so, I see no reason why 
he should not succeed. One statement is that Mr. Canning is to 
go to the Admiralty — another, that he is to return to the Foreign 
Department, that Lord Wellesley is to take the Treasury, and 
Mr. Percival to relapse into a mere Chancellor of the Exchequer. 
It is added that Lord Camden (President of the Council) and 
Lord Westmoreland (Privy Seal) are to go out. 



[ 437 ] 

" If Mr. Canning should not join his old colleagues before the 
meeting of Parliament, he will probably soon fall into the ranks 
of opposition, where he will be formidable. There will scarce- 
ly be any scruple in receiving him. If he should join his old 
colleagues, they will not gain much by him. As u debater in the 
House of Commons, he would be useful to them ;* but his repu- 
tation is not at this moment in the best possible plight, and his 
weight and connections are almost nothing. I am not sure that 
they would not lose by him more than they could gain. 

If Lord Grenville and Lord Grey should be recalled to power, 
Lord Holland would be likely to have the station of Foreign Se- 
cretary (Lord Grey preferring, as it is said, the Admiralty.) 

I believe that I have not mentioned to you that Mr. G. H. Rose 
was to have been the special envoy to our country, if Mr. Er- 
skine's arrangement had not been disavowed. I am bound to say 
that a worse choice could not have been made. Since his return 
to England, he has, I know, misrepresented and traduced us with 
an industry that is absolutely astonishing, notwithstanding the 
cant of friendship and respect with which he overwhelms the few 
Americans who see him. SUlfKlit 

Mr. Madison to Mr. Pinkney. 

" Washington, Jan. 20th, 18]0. 
" Dear Sib, — I received, some days ago, a letter from Dr. 
Logan, containing observations on the posture and prospects of 
our foreign relations. Before the answer was out of ray hands, 
I received another, dated four days after, in which he merely in- 
formed me that he should embark for England in about eight days, 
with an offer to take charge of any communications for you. As 
his first letter did not glance at any such intention, it must be 
presumed to have been very suddenly formed. And as his last is 
silent as to the object of the trip, this is left to conjecture. From 
the anxiety expressed in his first letter for the preservation of 



* The only cabinet ministers at present in the House of Commons, are 
Mr Percivai, and Mr. Ryder, (the Secretary of State for the Home Depart- 
ment, and brother of Lord Harrowby.) 'i'Jie latter gentleman excites no 
•"xpertatiom. 



[ 438 ] 

peace with England, which appeared to him to be in peculiar 
danger, and from his known benevolence and zeal on the subjecty 
it may reasonably be supposed that his views relate, in some 
form or other, to a mitigation of the hostile tendencies which dis- 
tress him ; and that his silence may proceed from a wish to give 
no handle for animadversions of any sort on the step taken by 
him. 

" You will receive from the Secretary of State, unless, indeed^ 
the opportunity fail through the shortness of the notice, such com- 
munications and observations as may be thought useful to you. 
You will find that the perplexity of our situation is amply dis- 
played by the diversity of opinions and prolixity of discussions 
in Congress. Few are desirous of war ; and few are reconciled to 
submission ; yet the frustration of intermediate courses seems to 
have left scarce any escape from that dilemma. The fate of 
Mr. Macon's bill, as it is called, is not certain. It will probably 
pass the House of Representatives, and for aught 1 know, may 
be concurred in by the Senate. If retaliated by Great Britain,, 
it will operate as a non-importation act, and throw exports into 
the circuit of the non-intercourse act: If not retaliated, it may 
be felt by the British navigation, and through that interest, by 
the government : since the execution of the law, which relates to 
the ship, and not to the merchandise, cannot be evaded. With re- 
spect to the East Indies, the proposed regulation will have the 
efiect of compelling the admission of a direct and exclusive trade 
for our vessels, or a relinquishment of this market for India 
goods, further than they can be smuggled into it. It just appears 
that a proposition has been made in the House of Representatives, 
to employ our ships of war in convoys, and to permit merchant- 
men to arm. However plausible the arguments for this experi- 
ment, its tendency to hostile collisions is so evident, that I think 
its success iniprobable. As a mode of going into war, it does 
not seem likely to be generally approved, if war was the object. 
The military preparations which have been recommended and 
are under consideration, are what they profess to be, measures of 
precaution. They are not only justified but dictated by the un- 
certainty attending the course which Great Britain may take, or 
raiher by the unyielding and unami'cable traits in her cabinet and 



[ 439 ] ' 

her countenance. Measures of that sort are also the more adapt- 
ed to our situation, as in the event of accommodation with Great 
Britain they may possibly be wanted in another quarter. The 
longd<>bates on the resolution of Mr. Giles, on the subject of Mr. 
Jackson, have terminated in affirmative votes by large majorities. 
This, with the refusal of the' Executive to hold communications 
with him, it is supposed, will produce a crisis in the British po- 
licy towards the United States,^ to which the representations of 
the angry minister will doubtless be calculated to give an unfa- 
vourable turn. Should this happen, our precautionary views will 
have been the more seasonable. It is most probable, however, 
that instead of expressing resentment by open war, it will appear 
in more extended depredations on our commerce, in declining to 
replace Mr. Jackson, and perhaps in the course, observed with 
'respect to you, in meeting which your own judgment will be the 
best guide. Should a change in the composition or calculations 
of the cabinet give a favourable turn to its policy towards this 
country, it is desirable that no time may be lost in allowing it 
its effect. With this view you will be reminded of the seve- 
ral authorities you retain to meet in negociation, and of the in- 
structions by which they are to be exercised : it being always un- 
derstood that, with the exception of some arrangement touching 
the Orders in ('ouncil, reparation for the insult on the Chesapeake 
must precede a general negociation on the questions between the 
two countries. At present nothing precise can be said as to a 
condition on our part for a repeal of the Orders in Council ; the 
existing authority in the Executive to pledge one, being expirable 
with the Non-Intercourse act, and no other pledge being provided 
for. As it is our anxious desire, however, if the British govern- 
ment should adopt just and conciliatory views, that nothing may 
be omitted that can show our readiness to second them, you may 
offer a general assurance that, as in the case of the Embargo, 
and the Non-Intercourse acts, any similar power with which the 
Executive may be clothed, will be exercised in the same spirit 
" You will, doubtless, be somewhat surprised to find among 
the communications to Congress, and in print too, the confiden- 
tial conversations with Mr. Canning reserved from such a use by 
your own request. It was, in fact, impossible to resist the 



[ 440 ] 

pointed call for them, without giving umbrage to some, and op- 
portunity for injurious inferences to others. The difficulty was 
increased by the connexion between them and other communica- 
tions necessarily falling within the scope of the rule of compli- 
ance in such cases. Finally, there did not appear to be any 
thing in the conversations which could warrant British complaint 
of their disclosure, or widen the space between you and the 
British ministry. 

''' As it may not be amiss that you should know the sentiments 
which I had expressed to Dr. Logan, and which, 'though in an- 
swer to his letter written previous to the notification of his in- 
tended trip, he will, of course, carry with him, I enclose a copy 
of the answer, 

" The file of newspapers from the Department of State, will 
give you the debates on the case of Jackson. I enclose, however, 
a speech 1 have just looked over in a pamphlet form. Although 
liable to very obvious criticisms of several sorts, it has presented 
a better analysis of some parts of the subject, than 1 have ob- 
served in any of the speeches." 

Mr. PiNKNKv fo Mr. Madison. 

" London, 23d March, 1810. 

" Dear Sia, — I had intended to write to you a very tedious 
letter, but I have no longer time to do so — as it is now near 2 
o'clock in the morning, and Lieut. Elliott leaves town at 10, A. M. 

" JVly official letter of the 21st inst. will apprize you of the 
course finally taken by this government in consequence of Mr. 
.Fackson's affair. I do not pretend to anticipate your judgment 
upon it. It certainly is not what I wished, and, at one time, 
expected ; but I am persuaded that it is meant to be conciliatory. 
I have laboured earnestly to produce such a result as I believed 
would be more acceptable. \\ hy I have failed I do not pre- 
cisely know, and I will not harass you with conjectures. The 
result, such as it is, will I am sure be used in the wisest manner 
for the honour and prosperity of our country. 

" It is doubtful whether there will be any change of admini- 
stration here. Partial changes in administration are very likely. 



[441 ] 

" I think I can say with certainty that a more friendly dispo- 
sition towards the United States exists in this country at present 
than for a long time past." 



JWr. Madison to Mr. Pinkney. 

« Washington, May 23d, 1810. 
Dear Sir, — You will learn from the Department of State, as 
you must have anticipated, our surprize that the answer of Lord 
Wellesley to your very just and able view of the case of Jackson, 
corresponded so little with the impressions of that minister mani- 
fested in your first interviews with him. The date of the answer 
explains the change, as it shows that time was taken for ob- 
taining intelligence from this country, and adapting the policy of 
the answer to the position taken by the advocates of Jackson. 
And it must have happened that the intelligence prevailing at 
that date was of the sort most likely to mislead. The elections 
which have since taken place in the eastern states, and which 
have been materially influenced by the affair of Jackson and the 
spirit of party connected with it, are the strongest of proofs that 
the measure of the executive coincided with the feelings of the 
nation. In every point of view the answer is unworthy of the 
source from which it comes. 

"From the manner in which the vacancy left by Jackson is 
provided for, it is inferred that a sacrifice is meant of the respect 
belonging to this government, either to the pride of the British go- 
vernment, or to the feelings of those who have taken side with it 
against their own. On either supposition, it is necessary to coun- 
teract the ignoble purpose. You will accordingly find that 
on ascertaining the substitution of a charge to be an intentional 
degradation of the diplomatic intercourse on the part of Great 
Britain, it is deemed proper that no higher functionary should re- 
present the United States at London. I sincerely wish, on every 
account, that the views of the British government in this instance, 
may not be such as are denoted by appearances, or that, on find- 
ing the tendency of them, they may be changed. However the 
fact may turn out, you will of course not lose sight of the expc- 



[ 442 ] 

diency of mingling in every step you take, as much of modera- 
tion, and even of conciliation, as can be justifiable, and will, in 
particular, if the present despatches should find you in actual ne- 
gociation, be governed by the result of it, in determining the 
question of your devolving your trust on a Secretary of 
Legation. 

" The act of Congress, transmitted from the Department of State, 
will inform you of the footing on which our relations to the bellige- 
rent powt-rs were finally placed. The experiment now to be made 
of a commerce with both, unrestricted by our laws, has resulted 
from causes which you will collect from ihe debates, and from your 
own reflections. The new form of appeal to the policy of Great 
Britain and France, on the subject of the decrees and orders, will 
most engage your attention. However feeble it may appear, it is 
possible that one or the other of those powers may allow it more 
eflTect than was produced by the overtures heretofore tried. As far 
as pride may have influenced the reception of these, it will be the 
less in the way, as the law in its present form may be regarded 
by each of the parties, if it so pleases, not as a coercion or a 
threat to itself, but as a promise of attack on the other. Great 
Britain indeed may conceive that she has now a complete inte- 
rest in perpetuating the actual state of things, which gives her 
the full enjoyment of our trade, and enables her to cut it off" with 
every other part of the world, at the same time that it increases 
the chance of such resentments in France at the inequality as 
may lead to hostilities with the United States. But, on the other 
hand, this very inequality, which France would confirm by a 
state of hostilities with the United States, may become a motive 
with her to turn the tables on Great Britain, by compelling her 
either to revoke her orders, or to lose the commerce of this 
country ! An apprehension that France may take this politic 
course, would be a rational motive with the British government 
to get the start of her. Nor is this the only apprehension that 
merits attention. Among the inducements to the experiment of 
an unrestricted commerce now made were two, which contribu- 
ted essentially to the majority of votes in its favour ; first, a ge- 
neral hope, favoured by daily accounts from England, that an 
adjustment of differences there, and thence in France, would ren- 



[ 443 ] 

der the measure safe and proper ; second, a willingness in not a 
few to teach the advocates for an open trade under actual cir- 
cumstances, the folly, as well as degradation of their policy. At 
the next meeting of Congress, it will be found, according to pre- 
sent appearances, that instead of an adjustment with either of 
the belligerents, there is an increased obstinacy in both, and that 
the inconveniences of the embargo and non-intercourse have 
been exchanged for the greater sacrifices as well as disgrace re- 
sulting from a submission to the predatory systems in force. It 
will not be wonderful therefore if the passive spirit which marked 
the late session of Congress, should at the next meeting be roused 
to the opposite point ; more especially as the tone of the nation 
has never been as low as that of its representatives, and as it is 
rising already under the losses sustained by our commerce in the 
continental ports, and by the fall of prices in our produce at 
home, under a limitation of the market to Great Britain, Cotton 
I perceive is down at 10 or 11 cents in Georgia. The great 
mass of tobacco is in a similar situation : and the eflect must 
soon be general,- with the exception of a few articles which do 
not at present glut the British demand. Whether considerations 
like these will make any favourable impression on the British 
cabinet, you will be the first to know. Whatever confidence I may 
have in them, I must forget all that is past before I can indulge 
very favourable expectations. Every new occasion seems to 
countenance the belief that there lurks in the British cabinet a 
hostile feeling towards this country, which will never be eradi- 
cated during the present reign ; nor overruled, whilst it exists,' 
but by some dreadful pressure from external or internal causes. 

" With respect to the French government, we are taught by 
experience to be equally distrustful. It will have, however, the 
same opportunity presented to it with the British government, 
of comparing the actual state of things with that which would be 
produced by a repeal of its decrees ; and it is not easy to find 
any plausible motive to continue the former as preferable to the 
latter. A worse state of things than the actual one could not 
exist for France, unless her preference be for a state of war. If 
she be sincere, either in her late propositions for a chronologi- 
eal revocation of illegal edicts against neutrals, or to a pledge 



[444 ] 

from the United States not to submit to those of Great Britain, 
she ought at once to embrace the arrangement held out by Con- 
gress ; the renewal of a non-intercourse with Great Britain, be- 
ing the very species of resistance most analogous to her profess- 
ed views. 

" I propose to commit this to the care of Mr. Parish, who is 
about embarking at Philadelphia for tngland, and finding that 
I have missed a day in my computation of the opportunity, I 
must abruptly conclude with assurances of my great esteem and 
friendly respect." 

Mr. PiNKNEY to Mr. Madison. 

Private. " hoTHDOn, August 13, \S10. 

" Rear Sir,' — I return you my sincere thanks for your letter 
of the 23d of May. Nothing could have been more acceptable 
than the approbation which you are so good as to express of 
my note to Lord Wellesley on Jackson's affairs. I wish I had 
been more successful in my endeavours to obtain an unexception- 
able answer to it. You need not be told that the actual reply 
was, to plan and terms, wide of the expectations which I had 
formed of it. It was unfortunately delayed until first views and 
feelings became weak of themselves. The support which Jack- 
son received in America was admirably calculated to produce 
other views and feelings, not only by its direct influence on Lord 
Wellesley and his colleagues, but by the influence which they 
could not but know it had on the British nation and the Parlia- 
ment. The extravagant conduct of France had the same perni- 
cious tendency ; and the appearances in Congress, with reference 
to our future attitude on the subject of the atrocious wrongs in- 
flicted upon us by France and England, could scarcely be without 
their effect. It is not to be doubted that, with a strong desire in 
the outset to act a very conciliatory part, the British govern- 
ment was thus gradually prepared to introduce into the proceed- 
ing what would not otherwise have found a place in it, and to 
omit what it ought to have contained. The subject appeared to 
it every day in a new light, shed upon it from France and the 
United States, and a corresponding change naturally enough took 



[ 445 ] 

place in the scarcely remeinbered estimates which had at first 
been made of the proper mode of mnnaging it. Tht* change in 
Lord iVellesley's notion upon it, between our first interview and 
the date of his answer to my note, must have been considerable, 
if "that answer had, as doubtless it had, his approbation. For, 
the account of that interview, as given in my private letter to 
Mr. Smith of the 4th of January, is so far from exaggerating 
Lord Wellesley's reception of what I said to him, that it is much 
below it. It is to be observi d, however, that he had hardly read 
the correspondence, and had evidently thought very little upon 
it. For which reason, and because he spoke for himself only, 
and with less care than he would perhaps have used if he had 
considered that he was speaking officially, I am glad that you 
declined laying my private letter before the Congress. The 
publication of it, which must necessarily have followed, would 
have produced serious embarrassment. 

" Do you not think that, in some respects. Lord Welleslev's 
answer to my note has not been exactly appreciated in America? 
I confess to you that this is my opinion. — That the paper is a very 
bad one is perfectly clear ; but it is not so bad in intention as it is 
in reality, nor quite so bad in reality as it is commonly supposed 
to be. 

" It is the production of an indolent m^n, making a great 
effort to reconcile things almost incongruous, and just showing 
his wish without executing it. Lord Wellesley wished to be ex- 
tremely civil to the American government ; but he was at the 
same time to be very stately — to manage Jackson's situation — - 
and to intimate disapprobation of the suspension of his functions. 
He was stately, not so much from design, as because he cannot 
be titherwise. In managing Jackson's situation he must have 
g>ne beyond his original intention, and certainly bey(md any, of 
which I was aware before T received his answer. If the answer 
had been promptly written, I have no belief that he would have 
affected to praise Jackson's " ability, zeal, and integrity," or that 
he would have said any thing about his Majesty not having 
" marked his conduct with any expression of his displeasure." 
He would have been content to forbear to censure him ; and that 
I always took for granted he would do. 

57 



[ 446 J 

'* For Jackson, personally, Lord Wellesley cares nothing. In 
his several coiiferences with me, he never vindicated him, and he 
certainly did not mean in liis letter to undertake his defence. It 
is impossible that he should not have (1 am indeed sure that he 
has) a mean opinion of that most clumsy and ill-conditioned 
minister. His idea always appeared to be that he was wrong in 
pressing at all the topic which gave offence ; but that he acted 
U|)on good motives, and that his government could not with ho- 
nour, or without injury to the diplomatic service generally, dis- 
grace him. This is explicitly stated in my private letter t)f the 
4th of January to Mr. Smith. There is a great difference, un- 
doubtedly, between that idea, and the one upon which Lord 
Wellesley apperirs finally to have acted. It must be admitted, 
however, that the praise bestowed upon Jackson is very meagre, 
and that it ascribes to him no qualities in any degree inconsistent 
with the charge of gross indecency and intolerable petulance pre- • 
ferred against him in my note. He might be honest, zealous, 
able ; and yet be indiscreet, ill-tempered, suspicious, arrogant, 
and ill-mannered. It is to be observed, too, this has no reference 
whatever to the actual case, and that, when the answer speaks of 
the offence imputed to Jackson by the American government, it 
does not say that he gave no such cause of offence, but simply 
relies on his repeated asseverations that he did not mean to offend. 

" If the answer had been promptly written, I am persuaded 
that another feature which now distinguishes it would have been 
otherwise. It would not have contained any complaint against 
the course adopted by the American government in putting an 
end to official communication with Jackson. That Lord Welles- 
ley thought that course objectionable from the first appears in 
my private letter above mentioned to Mr. Smith. But he did 
not urge his objections to it in such a way, at our first interview 
or afterwards, as to induce me to suppose that he would except 
to that course in his written answer. He said in the outset that 
he considered it a damnum to the British government ; and I 
know that he was not disposed to acknowledge the regularity of 
it. There was evidently no necessity, if he did not approve the 
course, to say any thing about it — and in our conversations I al- 
ways assumed that it was not only unnecessary but wholly inad- 



[ 447 ] 

missible to mention it officially for any other purpose than that 
of approving it. 

" After all, however, what he has said upon this point (idle 
and ill-judged as it is) is the mere statement of the opinion of the 
British government, that another course would have been more in 
rule than ours. It amounts to this, then, that we have opinion 
against opinion and practice ; and that our practice has been ac- 
quiesced in. 

" As to that part of the answer which speaks of a charge 
d'affaires, it must now be repented of here, especially by Lord 
Wellesley, if it was really intended as a threat of future inequali- 
ty in the diplomatic estc.blishments of the two countries, or even 
to wear thai appearance. Lord Wellesley's letter to me of the 
22d ult. abandons that threat, and makes it consequently much 
worse than nothing. His explanations to me on that head (not 
official) have lately been, that, when he wrote his answer, he 
thought there was some person in America to whom Jackson 
could have immediately deUvered his charge, and that if he had 
not been under that impression, he should not probably have 
spoken in his answer of a charge d''affaii'es, and should have 
sent out a minister plenipotentiary in the first instance. I know 
not what stress ought to be laid upon those private and ex post 
facto suggestions ; but I am entirely convinced that there was no 
thought of continuing a charge d'affaires at Washington for 
more than a short time. Neither their pride, nor their interests 
nor the scantiness of their present diplomatic patronage would 
permit it. That Lord Wellesley has long been looking out in 
hix dilatory loay for a suitable character (a man of rank) to send 
as Minister Plenipotentiary to the United States, I have the 
best reason to be assured. That the appointment has not yet 
taken place, is no proof at all that it has not been intended. 
Those who think they understand Lord W. best represent him 
as disinclined to business — and it is certain that I have found 
him upon every occasion given to procrastination beyond all ex- 
ample. The business of the Chesapeake is a striking instance. 
Nothing could be fairer than his various conversations on that 
case. He settles it with me verbally over and over again. He 
promises his written overture in a few days — and I hear no more 



[ 448 ] 

of the matter. There may be cunning in all this, but it is not 
such cuiininsJ as 1 should expect from Lord Wellesley. 

" In the affair of the blockades, it is evident that the delay arises 
from the cnbinet, alarmed at every thing which touches the sub- 
ject of blockades, and that abominable scheme of monopoly, 
called the Orders in Council. Yet it is an unquestionable fact 
that they have suffered, and are suffering severely under the ini- 
quitous restrictions which they and France have imposed upon 
the wnrld. 

" I mean to wait a little longer for Lord Wellesley's reply to 
my note of the 30th of April. If it is not soon received, I hope 
I shall not be thought indiscreet if I present a strong remonstrance 
upon it, and if I take occasion in it to advert to the affair of the 
Chesapeake, and to expose what has occurred in that affair be- 
tween Lord Wellesley and me. 

'^ I have a letter from deneral Armstrong of the 24th of last 
month. He expects no change in the measures of the French 
governmem with rejrard to the United States. I cannot, how- 
ever, refrain from hoping that we shall have no war with that 
government. We have a sufficient cause for war against both 
France and England — an equal cause against both in point of 
justice, even if we take into the account the recent violences of 
the former. But looking to expediency, which should never be 
lost sight of, 1 am not aware of any considerations that should 
induce us in actual circumstances to embark in a war with France. 
I have so often troubled you on this topic, that 1 will not ven- 
ture to stir it again." 

********** 

Mr. PiNKNEY to Mr. Madison. 

" London, Oct. 30th, 1810. 

* * *# * * * # * • 

" I have heard nothing further of the appointment of a Plenipo- 
tentiary to the United States, ^othing further of the case of the 
Chesapeake. Lord Wellesley is a surprizing man." 



( 449 ) 



Mr. Madison to Mr. Tinknev. 

" Washington, Oct. 30, 1810. 
" Dear Sib, — Your letter of August 13th was duly received- 
Its observations on the letter and conduct of Lord Welle^ley are 
an interesting comment on both. The light in which the letter 
was seen by many in this country was doubtless such as gave to 
its features an exaggerated deformity. But it was the natural 
effect of its contrast to the general expectation founded on the 
tenour of your private letter to Mr. Smith, and on the circum- 
stances which in the case of Jackson seemed to preclude the least 
delay in repairing the insults committed by him. It is true also 
that the letter, when viewed in its most favourable light, is an 
unworthy attempt to spare a false pride on one side at the ex- 
pense of just feelings on the other, and is in every respect infi- 
nitely below the elevation of character assumed by the British 
government, and even of that ascribed to Lord Wellesley. It 
betrays the consciousness of a debt with a wish to discharge it in 
false coin. Had the letter been of an earlier date, and accom- 
panied by the prompt appointment of a successor to Jackson, its 
aspect would have been much softened. But every thing was 
rendered as offensive as possible by evasions and delays, which 
admit no explanation without supposing a double game, by which 
they were to cheat us into a reliance upon fair promises, whilst 
they were playing into the hands of their partizans here, who 
were turning the delays into a triumph over their own govern- 
ment. This consideration had its weight on the decision last 
communicated, with respect to your continuance at London, or 
return to the United States. 

********** 

" The sole question on which your return depends, therefore, 
is whether the conduct of the government where you are, may not 
render your longer stay incompatible with the honour of the 
United States. The last letter of the Secretary of State has so 
placed the subject for your determination, in which the fullest 
confidence is felt. Waiving other depending subjects, not of re- 
cent date, a review of the course pursued in relation to Jackson 



[ 450 ] 

and a successor cjccites a mixture of indignation and contempt, 
which oiighi not to be iTiorf lightly expressed than by your im- 
mcdiately substituting a secretary of legation for the grade you 
hold, unless the step be at>soiutely forbidden by the weighty 
consideration which has been stated to you, and which coincides 
with the sound policy lo which you allude of putting an adver- 
sary completely in the wrong. The prevailing opinion here is 
that this has already been abundantly done. 

" Besides the public irritation produced by the persevering 
insolence of Jackson in his long stay, and his conduct during it, 
there has been a constant heart-burning on the subject of the Chesa- 
peake, and a deep and settled indignation on the score of im- 
pressments, which can never be extinguished without a liberal 
atonement for the former, and a systematic amendment of the 
latter. 

" You have been already informed that a proclamation would 
issue giving effect to the late act of Congress on the ground of 
the Duke de Cadore's letter to General Armstrong, which st.ites 
an actual repeal of the French decrees. The letter of Wellesley 
to you is a promise only, and that in a very questionable shape ; 
the more so, as Great Britain is known to have founded her re- 
taliatory pretensions on the unprecedented mode of warfare 
against her, evidently meaning the exclusion of her trade from 
the continent. Even the blockade of May, 1806, rests on the 
same foundation. These considerations, with the obnoxious ex- 
ercise of her sham blockades in the moment of our call for their 
repeal, backed by the example of France, discourage the hope 
that she contemplates a reconciliation with us. I sincerely wish 
your next communications may furnish evidence of a more 
favourable disposition. 

" It will not escape your notice, and is not undeserving that 
of the British government, that the non-intercourse, as now to be 
revived, will have the effect of giving a monopoly of our export- 
ations to Great Britain to our own vessels, in exclusion of hers ; 
whereas, in its old form, Great Britain obtained a substantial 
monopoly of hers through the entrepots of INova Scotia, East 
Florida, &c. She cannot therefore deprive our vessels, which 
may now carry our exports directly to Great Britain, of this 



[451 ] 

monopoly without refusing the exports altogether, or forcing 
them into difficult and expensive circuits with the prospect of a 
counteracting interposition of Congfress, should the latter experi- 
ment be resorted to Nothing would be necessary to defeat this 
experiment but to prohibit, as was heretofore contemplated, the 
export of our productions to the neighbouring ports belonging to 
Great Britain or her friends. 

" The course adopted here towards West Florida will be made 
known by the Secretary of State. The occupancy of the terri- 
tory as far as the Perdido, was called for by the crisis there, and 
is understood to be within the authority of the Executive. East 
Florida also is of great importance to the United States, and it is 
not probable that Congress will let it pass into any new hands. 
It is to be hoped that Great Britain will not entangle herself with 
us by seizing it, either with or without the privity of her allies in 
Cadiz. The position of Cuba gives the United States so deep 
an interest in the destiny even of that island, that althouffh they 
might be inactive, they could not be satisfied spectators at its fall- 
ing under any European government which may make a fulcrum of 
that position against the commerce and security of the United 
States. With respect to Spanish America generally, you will 
find that Great Britain is engaged in the most eaafer, and if with- 
out the concurrence of the Spanish authorities at Cadiz, the most 
reproachful grasp of political influence and commercial prefer- 
ence. In turning a provident attention to the new world, as she 
loses ground in the old, her wisdom is to be commended, if re- 
gulated by justice and good faith; nor is her pursuit of commer- 
cial preferences, if not seconded by insidious and slanderous 
means against our competitions, such as are said to be em[iloyed, 
to be tested by any other standard than her own interest. A 
sound judgment of this does not seem to have been consulted in 
the specimen given in the treaty at Caracas, by which a prefer- 
ence in trade over all other nations is extorted from the tem- 
porary fears and necessities of the revolutionary Spaniards. The 
policy of the French government at the epoch of our indepen- 
dence, in renouncing every stipulation against the equal privileges 
of all other nations in our trade, was dictated by a much bette r 
knowledge of human nature, and of the stable interest of France. 



[ 452 ] 

" The elections for Congress are nearly over. The result is 
anwlher warning against a reliance on the strength of a British 
party, if the British government be still under a delusion on that 
subject. Should France eflfectually adhere to the ground of a 
just and conciliatory policy, and Great Britain bring the United 
States to issue on her paper blockades, so strong is this ground 
in right and opinion here, and even in the commitment of all the 
great leaders of her party here, that Great Britain will scarce 
have an advocate left." 

Mr. PiNKNEY /o Mr. Madison. 

" London, Dec. \7th, 1810. 

" Dear Sir, — The proclamation of the 2d of November* is 
doing good here, and may, perhaps, bring the ministry to rea- 
son. I enclose Gobbet's last number, which touches upon our 
relations with this country, and Bell's Weekly Messenger of yes- 
terday, which treats of the same subject. My letter to Lord W. 
of the 10th instant, would have gone into it more fully, (though 
I was straightened for time,) but that I was afraid of the sin of 
prolixity, and expected, moreover, to be called upon to resume 
the discussion in another letter. There is reason to think that, 
th"Ugh the freedom of its style may have given umbrage to some 
of the cabinet, it will assist your proclamation. I have never 
met with a state-paper to be compared with Lord W.'s note to 
me of the 4th instiint. To tell me gravely and dryly, after my 
letters of the 25th of August and 3d of November, that he had 
not been able to obtain any " authentic intelligence" of the re- 
peal of the French edicts, &:c. ! ! 

'' You may, perhaps, suppose that in my letter to him of the 
lOth, I have examined too much at large the British construction 
of the French declaration. I should not have done so but for a 
conversation a few days before with Sir William Scott, who ap- 
peared to have a prodigious hankering after the nonsense about 
prcalable conditions. It is known besides to have been the favour- 

* [Issued in consequence of the supposed repeal of the Fieuch decrees, 
and declarinj: f'lp revival of the non-intercourse with Great Britain, unless 
that power should also repeal its Orders in Council ] 



t 45S ] 

ite doctrine of the court and its adherents, and of all that artti- 
neuiral class to which Stephen and Marryatt belong, and indeed 
of the people in general. We shall probably hear no more of 
it, however ; and I understood, indeed, last night, that there is a 
perceptible change in the tone of ministers and their friends on 
the whole subject. Whether they will act wisely in the end, I 
cannot yet say. The presumption is always against them. 

" I have observed in my letter that the convenience of relaxing 
the orders in council by licenses " seems to be no longer enjoy- 
ed." The objt'ct of all that part of my letter was merely to 
give a slight sketch (which I should have been glad to be at liber-, 
ty to make much stronger) of that monopolizing and smuggling 
scheme which has so long insulted the world and tried our pa- 
tience. The fact is, that they have not granted any licenses for 
several weeks. It is not, however, (as I am assured,) that they are 
asha.ned of this mean practice, but because they hope, by abstain- 
ing from it for a time, to get better terms of intercourse in this 
way from their enemy. If their orders should not be immedi- 
ately revoked, so as to prevent the revival of this trick of trade, 
a vigorous tone should be used with them — and I shall be hap()y 
to be authorised to use it at discretion. Be assured they will not 
stand against a show of determined resistance to their injustice. 
But if they should, they must be resisted to the uttermost, never- 
theless. 

" There will, I am inclined to think, be a regency ; but it is 
believed that the Prince will be greatly restricted at first. The 
restrictions will not last ; yet if he should be obliged to continue 
the present ministers for any time, however short, (which it is 
imagined will be a part of the terms with which he will be shack- 
led,) the mischiefs of their crooked and little policy towards the 
United States, supposing that they mean to brave the conse- 
quences of persevering in it, may become permanent and irre- 
trievable. 

" There has been, I believe, some juggling in the affair of a 
Minister Plenipotentiary. You will see in ray letter to Mr. 
Smith of the 14th, an account of Lord W.'s late explanations to 
me on that head. I have omitted, however, to state in that let- 
ter that he inadvertentbj remarked, in the course of the confer- 

58 



[ 454 ] 

ence, that great pains had been takert by some people to persuade 
him '"that the BriUsh interest in America (I quote his words) 
would be completely destroyed by sending thither at this time a 
Minister Plenipotentiary." He soon perceived, by ray comments 
on this suggestion, that he had committed an indiscretion in talk- 
ing of it, and he wished me, I thought, to consider what he had 
said as confidential. May we not infer that these persuasions 
have had an effect, when we look to the quality of his ostensible 
reasons for not redeeming his pledge of July last ? Who the 
persuaders were he did not say — but Mr. Jackson (who, by 
the bye, cannot be very well satisfied with his reception here) 
may be supposed to be among the number, if he is not the only 
one. Whether this gentleman (if he has used such instances) 
quotes any American authorities in support of them can only 
be uuessed. It would be no breach of charity to conjecture that 
he does. At any rate there must be some secret cause for the de- 
lay of the promised mission. Even the insolence of , 

added to the reason assigned in conference, will not explain it^ 
satisfactorily. There is cunning at the bottom ; and I can ima- 
gine nothing so likely to throw a light upon it as the unguarded 
communication of Lord W. above mentioned. 



[ 455 ] 



N''- IV. 

SPEECH IN THE CASE OF THE NEREIDE. 



If I were about to address this high tribunal 
with a view to establish a reputation as an advo- 
cate, I should feel no ordinary degree of resent- 
ment against the gentleman whom I am compel- 
led to follow ;* if indeed it were possible to feel 
resentment against one who never fails to plant a 
strong and durable friendship in the hearts of all 
who know him. He has dealt with this great cause 
in a way so masterly, and has presented it before 
you with such a provoking fulness of illustration, 
that his unlucky colleague can scarcely set his 
foot upon a single spot of it without trespassing 
on some one of those arguments which, with an 
admirable profusion, I had almost said prodiijality 
of learning, he has spread over the whole subject. 
Time, however, which changes all things, and man 
more than any thing, no longer permits me to 
speak upon the impulse of ambition. It has left 
me only that of duty ; better, perhaps, than the 
feverish impulse which it has supplanted ; suffi- 

* Mr. Dallas. 



[ 456 ] 

cient, as T hope, to urge me, upon this and every 
other occasion, to maintain the cause of truth, by 
such exertions as may become a servant of the 
law in a forum like this. I shall be content, there- 
fore, to travel after my learned friend, over a part 
of the track which he has at once smoothed and 
illuminated happy, rather than displeased, that he 
has facilitated and justified the celerity with which 
I mean to traverse it — more happy still if I shall 
be able, as I pass along, to relieve the fatigue of 
your honours, the benevolent companions of my 
journey, by imparting something of freshness and 
novelty to the prospect around us. To this course, 
I am also reconciled by a pretty confident opi- 
nion, the result of general study as well as of parti- 
cular meditation, that the discussion in which we 
are engaged has no claim to that air of intricacy 
which it has assumed ; that, on the contrary, it 
turns upon a few very plain and familiar princi- 
ples, which, if kept steadily in view, will guide us 
in safety, through the worse than Cretan labyrnth 
of topics and authorities that seem to embarrass 
it, to such a conclusion as it may be fit for this 
Court to sanction by its judgment. 

1 shall in the outset dismiss from the cause 
whatever has been rather insinuated wMth a pru- 
dent delicacy, than openly and directly pressed by 
my able opponents, with reference to the person- 
al situation of the claimant, and of those with 
whom he is united in blood and intc^rest. I am 
willing to admit that a Christian judicature may 



[457 ] 

dare to feel for a desolate foreigner who stands 
before it, not for life or death indeed, but for the 
fortunes of himself and his house. 1 am ready to 
concede, that when a friendly and a friendless 
stranger sues for the restoration of his all to human 
justice, she may sometimes icuh to lay aside a 
portion of her sternness, to take him by the hand, 
and, exchanging her character for that of mercy, 
to raise him up from an abyss of doubt and fear 
to a pinnacle of hope and joy. In such circum- 
stances, a temperate and guarded sympathy may 
not unfrequently be virtue. But this is the last 
place upon earth in which it can be necessary to 
state, that, if it be yielded to as a motive of deci- 
sion, it ceases to be virtue, and becomes some- 
thing infinitely worse than weakness. What may 
be the real value of Mr. Pinto's claim to our sym- 
pathy, it is impossible for us to be certain that we 
know ; but thus much we are sure we know, that 
whatever may be its value in fact, in the balance 
of the law it is lighter than a feather shaken from 
a linnet's wing, lighter than the down that floats 
upon the breeze of summer. I throw into the op- 
posite scale the ponderous claim of War ; a claim 
of high concernment, not to us only, but to the 
world ; a claim connected with the maritime 
strength of this maritime state, with public honour 
and individual enterprise, with all those passions 
and motives which can be made subservient to 
national success and glory in the hour of national 
trial and danger. I throw into the same scale 



[ 458 ] 

the venerable code of universal law, before which 
it is the duty of this ('ourt, high as it is in digni- 
ty, and great as are its titles to reverence, to bow 
down with submission. I throw into the same 
scale a solemn treaty, binding upon the claimant 
and upon you. In a word, I throw into that scale 
the rights of belligerent America, and, as embo- 
died with them, the rights of these captors, by 
whose etibrts and at whose cost the naval exer- 
tions of the government have been seconded, 
until our once despised and drooping flag has 
been made to wave in triumph where neither 
France nor Spain could venture to show a prow. 
You may call these rights by what name you 
please. You may call them iron, rights : — I care 
not: It is enough for me that they are RIGHTS. It 
is more than enough for me that they come before 
you encircled and adorned by the laurels which 
we have torn from the brow of the na\al genius 
of England: that they, come before yoii recom- 
mended, and endeared, and consecrated by a thou- 
sand recollections which it would be baseness and 
folly not to cherish, and that they are mingled in 
fancy and in fact with all the elements of our fu- 
ture greatness. 

******** 

After discussing the two first of the above 
mentioned grounds of argument, Mr. Pinkney 
proceeded : , 

I come now to the third and last question, upon 
which, if I should be found to speak with more 



[ 459 ] 

confidence than may be thought to become me, I 
stand upon this apology, that I have never been 
able to persuade myself that it was any question 
at all. I have consulted upon it the reputed ora- 
cles of universal law, with a wish disrespectful to 
their high vocation, that they would mislead me 
into doubt. But — pia sunt, nuUumque nefas ora- 
cula saudent. I have listened to the counsel f )r 
the claimant, with a hope produced by his reputa- 
tion for abilities and learning, that his argument 
would shake from me the sturdy conviction which 
held me in its grasp, and would substitute for it 
that mild and convenient scepticism that excites 
without oppressing the mind, and summons an 
advocate to the best exertion of his faculties, 
without taking from him the prospect of success, 
and the assurance that his cause deserves it. I 
have listened, I say, and am as great an infidel as 
ever. 

My learned colleague, in his discourse upon this 
branch of the subject, relied in some degree upon 
circumstances, supposed by him to be in evidence, 
but by our opponents believed to be merely as- 
sumed. I will not rely upon any circumstances 
but such as are admitted by us all. I take the 
broad and general ground, which does not require 
the aid of such special considerations as might be 
borrowed from the coilfested facts. 

The facts which are not contested are these: 
The claimant, Maimel Pinto, intending to make 
a large shipment of British merchandise from 



[ 460 ] 

London (where he then was) to Buenos Ayres, 
(the place of his ordinary residence,) for himself 
and other Spaniards, and moreover to take on 
freight, and with a view to a commission on the 
sales, and a share in the profits, in Sourh Ameri- 
ca, other merchandise belonging to British sub- 
jects, chartered at a fixed price, in the summer of 
1813, the British ship the Nereide, for those pur- 
poses. The Nereide was armed, either at the 
time of the charter or aftervvards, with ten guns ; 
and her armament was authorized by the British 
government, and recognized by the usual do(;u- 
ment. The merchandise being all laden, the ship 
sailed upon her voyage under British convoy, (as 
her owner had in the charter party stipulated she 
should do,) with the claimant, Pinto, and several 
passengers introduced, as I think, by him, on 
board, and with sixteen or seventeen hands. She 
parted convoy soon afterwards, and was met by 
the Governor Tompkins privateer, by which she 
was conquered, seized, and brought in as prize, 
after a resistance of several minutes, in the course 
of ichich the Nereide fired about twenty guns. < 
Sonne of the passengers co-operated in this resis- 
tance, but Pinto did not, nor as far as is known, 
did he encourage it. 

I shall consitler the case, then, as simply that of 
a neutral, who attempts to carry on his trade from 
a belligerent port, (not only under belligerent 
convoy,) but in a belligerent vessel of force, with 
full knowledge that she has capacity to resist the 



[ 461 ] 

commissioned vessels, and (if they lie in her way) 
to attack and subdue the defenceless merchant 
ships of the other belligerent, and with the further 
knowledge that her commander, over whom in 
this respect he has no control, has inclination 
and authority, and is bound by duty- so to resist, 
and is inclined and authorized so to attack and 
subdue. I shall discuss it as the case of a neu- 
tral, who advisedly puts in motion, and connects 
his commerce and himself with a force thus quali- 
fied and conducted ; who voluntarily identifies 
his commerce and himself with a hostile spirit, 
and authority, and duty, thus known to and un- 
controllable by him ; who steadily adheres to this 
anomalous fellowship, this unhallowed league be- 
tween Neutrality and War, until in an evil hour it 
falls before the superior force of an American 
cruizer, when for the first time he insists upon 
dissolving the connexion, and demands to be re- 
garded as an unsophisticated neutral, whom it 
would be barbarous to censure, and monstrous to 
visit with penalty. The gentlemen tell us that a 
neutral may do all this ! I hold that he may not, 
and if he may, that he is a " chartered libertine,'' 
that he is le^ibus so/utus, and may do anj/ thing. 
The boundaries which separate War from Neu- 
trality are sometimes more faint and obscure 
thanxould be desired ; but there never were any 
boundaries between them, or they must all have 
perished, if Neutrality can, as this new and most 
licentious creed declares, surround itself upon the 

59 



[ 462 ] 

ocean with as much of hostih^ equipment as it can 
aftord to purchase, if it can set forth upon the 
great common of the world, under the tutelary 
auspices and armed with the power of one belli- 
gerent, bi Iding defiance to and entering the lists 
of battle with the other, and at the same moment 
assume the aspect and robe of peace, and chal- 
lenge all the immunities which belong only to 
submission. 

iVIy learned friends must bear with me if I say, 
that there is in this idea such an a|)pearance of re- 
volting incongruity, that it is difficult to restrain 
the understanding from rejecting it without in- 
quiry, by a sort of intellectual instinct. It is, I 
admit, of a romantic and marvellous cast, and 
may on that account find favour with those who 
delight in paradox ; but I am utterly at a loss to 
conjecture how a well regulated and rlisciplined 
judgment, for which the gentlemen on the other 
side are eminently distinguished, can receive it 
otherwise than as the mere figment of the brain 
of some ingenious artificer of wonders. The idea 
is formed by a union of the most repulsive ingre- 
dients. It exists by an unexampled reconciliation 
of njortal antipathies. It exhibits such a rare dis- 
cordia mum, such a stupendous society of jar- 
ring elements, or (to use an expression of Tacitus,) 
of ?V',v iiiwciahilis, that it throws into the shade 
the wildest fictions of poetry. 1 entreat your ho- 
nours to endeavour a personification of this motley 
notion, and to forgive me for presuming to inti- 



[ 463 ] 

mate, that if, after you have achieved it, you 
pronounce the notion to be correct, you will 
have gone a great way to prepare us, by the au- 
thority of your opinion, to receive as credible his- 
tory, the worst parts of the mythology of ihe Pa- 
gan world. The Centaur and the Proteus of 
antiquity will be fabulous no longer. The pro- 
sopopoeia, to which I invite you is scarcely, indeed, 
within the power of fancy, even in her most rio- 
tous and capricious mood, when she is best able 
and most disposed to force incompatibilities into 
fleeting and shadowy combination, but if you 
can accomplish it, will give you something like the 
kid and the lion, the lamb and the tiger portentous- 
ly incorporated, with ferocity and meekness coex- 
istent in the result, and equal as motives of action. 
It will give you a modern Amazon, more strange- 
ly constituted than those with whom ancient fable 
peopled the borders of the Thermodon — her 
voice compounded of the tremendous shout of 
the Minerva of Homer, and the gentle accents of 
a shepherdess of Arcadia — with all the faculties 
and inclinations of turbulent and masculine War, 
and all the retiring modesty of virgin Peace. We 
shall have in one personage the pharctrata Ca- 
milla of the iEneid, and the Peneian maid of 
the Metamorphosis. We shall have Neutrality, 
soft and gentle and defenceless in herself, yet clad 
in the panoply of her warlike neighbours — with 
the frown of defiance upon her brow, and the 
smile of conciliation upon her lip — with the spear 
of Achilles in one hand and a lying protestation 



[ 464 ] 

of innocence and helplessness unfolded in the 
other. Nay, if I may be allowed so bold a figure 
in a mere legal discussion, we shall have the 
branch of olive entwined around the bolt of Jove, 
and Neutrality in the act of hurling the latter un- 
der the deceitful cover of the former. 

******* 

I must take the liberty to assert that if this be 
law, it is not that sort of law which Hooker speaks 
of, when, with the splendid magnificence of east- 
ern metaphor, he says, that " her scat is the bo- 
" som of God, and her voice the harmony of the 
" world."' Such a chimera can never be fashion- 
ed into a judicial rule fit to be tolerated or calcu- 
lated to endure. You may, I know, erect it into 
a rule ; and when you do, I shall, in common with 
others, do my best to respect it ; but until you do 
so, I am free to say, that in my humble judgment, 
it must rise upon the ruins of many a principle 
of peculiar sanctity and venerable antiquity, 
which " the wing of time has not yet brushed 
away," and which it will be your wisdom to pre- 
serve and perpetuate. 

If I should be accused of having thus far 
spoken only or principally, in meiapliors, I trust 
I am too honest not to plead guilty, and certainly 
I am not ashamed to do so : For, though my me- 
taphors, hastily conceived and hazarded, will 
scarcely bear the test of a severe and vigorous 
criticism, and although I confess that under your 
indulgence I have been betrayed into the use of 
them, by the composition of this mixed and (for 



[ 465 ] 

a court of judicature) uncommon audience. T trust 
that they will be pardoned upon the ground that 
they serve to mark out and illustrate my general 
views, and to introduce my more particular argu- 
ment. 

I will begin by taking a rapid glance at the ef- 
fect which this imagined license to neutrals, to 
charter the armed commercial vessels of a belli- 
gerent, may produce upon the safety of the un- 
armed trade of the opposite belligerent : and I 
deceive myself greatly if this will not of itself 
dispose us to reject the supposition of such a 
license. 

It will not be denied that, if one neutral may 
hire such a vessel from a belligerent, every neu- 
tral may do so. The privilege does not exist at 
all, or it is universal. The consequence is, that 
the seas may be covered with the armed ships 
of one of the parties to the war by the direct 
procurement, and at the sole expense, of those 
who profess to be no parties to it. What becomes, 
then, of the defenceless trade of the other party 
to the war ? Is it not exposed by this neutral in- 
terference to augmented peril, and encountered 
by a new repulsion ? Are not the evils of its pre- 
dicament inflamed by it ? Is not a more ample 
hostility, a more fearful array of force provided 
for its oppression ? Can it now pass at all where 
before it passed with difficulty and hazard ? Can 
it now pass without danger where before it was 
in perfect safety ? 

Suppose one of the contending powers to be 
greatly (superior in maritime means to the other ; 



[466] 

what better expedient could be devised to make 
that superiority decisive and fatal, than to au- 
thorize neutrals to foster it into activity by subsidies 
under the name of freight, to draw it out upon 
the ocean with a ripe capacity for mischief, to 
spread it far and wide over its surface, and to 
send it across every path which the commerce of 
the weaker belligerent might otherwise hope to 
traverse ^ Call you that Neutrality which thus 
conceals beneath its appropriate vestment the gi- 
ant limbs of War, and converts the charter-par- 
ty of the compting-house into a commission of 
marque and reprisals; which makes of neutral 
trade a laboratory of belligerent annoyance ; 
which with a- perverse and pernicious industry 
warms a torpid serpent into life, and places it be- 
neath the footsteps of a friend with a more appal- 
ling lustre on its crr^st and added venom in its 
sting; which forits selfish purposes feels tlie fire 
of international discord, which it should rather 
labour to extinguish, and in a contest between the 
feeble and the strong enhances those inequalities 
that give encouragement to ambition and triumph 
to injustice ? 

I shall scarcely be told that this is an ima- 
ginary evil. I shall not, in this Court, hear it said, 
as I think it has elsewhere been said,* that the 
merchant vessel of a belligerent, (of England 
especially,) armed under the authority of the state, 
and sailing under a passport which recognizes 

* At the hearing of the cause in the Court below. 



[ 467 ] 

that armament, lias not a riglit to attack, and, 
if she can, to capture such enemy vessels as may 
chance to cross her track. 

[Mr. Emmktt. — I shall maintain that she has 
no such right. She can capture only when she is 
herself assailed . She may be treated as a pirate, 
if she is the assailant. Where are the authori- 
ties that prove the contrary ?] 

Where are my authorities ? They are every 
where. Common sense is authority enough up- 
on such a point ; and if the recorded opinions of 
jurists are required, they are ah'eady familiar to 
the learning of this Court. The doctrine results 
in the clearest manner from the nature of solemn 
war, as it is viewed by the law of nations ; and it 
should seem rather to be the duty of my oppo- 
nents to produce authorities to show that this ob- 
vious corollary has been so restrained and quali- 
fied by civil regulations, or convention, or usage, 
as no longer to exist in the extent which I ascribe 
to it. But I undertake, myself, to produce am- 
ple proof that my doctrine is in its utmost extent 
correct. 

It is stated in Rutherforth^ s Institutes^ (vol. 2, 
p. 576 — 578,) that by the law of nations, a solemn 
war makes all the members of the one contend- 
ing state the enemies of all the members of the 
other, and, as a consequence, that by that law 
a declaration of war does m itself authorize every 
citizen or subject of the nation which issues it to 
act hostilely against every citizen or subject of the 



[ 468 ]J 
opposite nation. It is further stated, in the same 
book, (p. 577, 578,) that, as the nation which has 
declared war has authority over its own subjects, 
it may restrain them from acting against the other 
nation in any other manner than the public shall 
direct, and, of course, that notwithstanding the 
general power implied in a declaration of war, it 
may happen that none can act in war except those 
who have particular orders or commissions for 
this purpose. But, (it is added,) " this restraint, 
" and the legal necessity which follows from it, 
" that they who act should have particular orders 
" or commissions for what they do, arises, not from 
*' the law of nations, or from the nature of war, 
" but from the civil authority of their own coun- 
" try. A declaration of war is, in its own nature, 
" a general commission to all the members of the 
" nation to act hostilely against all the members of 
"the adverse nation. And all restraints, that are 
" laid upon this general commission, and make 
" any particular orders or commissions necessary, 
" come from positive and civil institution." I might 
now ask, in my turn, where are the authorities (or 
documents of any sort) that show the imposition 
or existence of these restraints upon English ves- 
sels, without which restraints the Nereide might 
lawfully have assailed and (if strong enough) cap- 
tured any American vessel that came in her way ? 
Vatttl, who is not a very precise or scientific, 
although a verv liberal writer, states the law as it 
is laid down by Frofessor Rutherforth. (Vattel 



[ 469 ] 

Droit des Gens, liv. 5, ch. 15, s. 2?6.) He says, 
however, that a usage has grown up among the 
nations of Europe restrictive of the general right 
of the individual subjects of one power at war — 
" agir hostilement contre I'autre." "La Uices- 
" site d'un ordre [)articuHer est si bien etabli que 
"lors meme que la guerre est declaree entre deux 
*' nations, si des paysans commettent d'eux-me- 
" mes quelques hostilitcs, I'ennemi les traite sans 
'' management, et les fait pendre, comme il feroit 
'' des voleurs ou des brigancJs." He adds, " li en 
" est de meme de ceux qui vont en course sur mev. 
" Une commission de leur prince, ou de Tamiral, 
" pent seule les assurer, s'ils sout pris, d'etre traites 
" comme des prisonniers faits dans une guerre 
" en forme." This has been relied upon, it se<^ms, 
as in point to show that vessels in the predica- 
ment of the Nereide can have no authority to at- 
tack such enemy merchant ships as they may meet 
upon the ocean. But does the qualification pro- 
duced by the usage which Vattel describes, (ad- 
mitting it to be as he supposes,) amount to this ? 

The rule in Vattel, as it applies to the peasan- 
try of a country, is connected with another — 
that they shall not ordinnrily be made the objects 
of hostility. This exemption implies a corres- 
ponding forbearance on their part to mingle with- 
out the orders of the state in offensive war ; and 
they are punished if they violate the condition of 
the immunity. This apparent severity is real 
mercy ; for its object is to keep the peasantry at 

60 



[ 470 ] 

home, and to confine the contentions, and con- 
sequently the direct effects of war to the troops 
who are appointed by the state to fight its battles. 
But a non-commissioned merchant vessel upon 
the high seas has nothing of this exemption. She 
cannot purchase it by forbearance — nay, she is at 
every moment the chosen object of hostility, as 
she is at every moment peculiarly exposed to it. 

So far as the supposed usage applies to priva- 
teers, it has no bearing upon this case. It may be 
proper to confine to commissioned vessels the right 
of cruizing for the mere purposes of war and 
prize. Yet it may be equally proper to leave to 
an armed merchant vessel the smaller and inciden- 
tal right (modified and checked in its exercise by 
such municipal regulations as each belligerent 
may and always does find it expedient to provide) 
to act offensively against the public enemies, if she 
chances to encounter them. At any rate, as the 
armament of a merchant vessel is sanctioned by the 
state to which she belongs, and is evidenced by its 
passport, it must depend altogether upon the laws 
of that state, whether this sanction amounts to a 
permission to commit hostilities in transitu or not. 
And I think I may venture to assert, that whatever 
inferences may be drawn from loose and general 
dicta to be found in a very few works upon the 
law of nations, no instance can be produced in 
which a merchant ship attacking an enemy vessel 
in the course of her voyage, has received the treat- 
ment which the learned council fisr the claimant 



[ 471 ] 

has allotted to such a proceeding, or has in any 
manner been punished, or even in any degree 
censured. 

The notions of Azuni appear (as far as any 
intelligible notions can be collected from his 
work called a Treatise on the Maritime Law of 
Europe) to be similar to those of Vattel, and con- 
sequently, do not touch the point under considera- 
tion. This writer has not been able to satisfy 
himself as to the propriety of the practice of 
Privateering; or, rather, he is the undisguised 
advocate (in different parts of his book) of the 
two opposite opinions, that it is a very bad prac- 
tice, and a very good one. Thus in Part 2d, ch. 
4, s. 13, (p. 232 of the translation,) he inveighs 
with an amiable vehemence against it, (bringing 
the Abbe Mably to his assistance,) and in the 
next chapter (p. 350) gives us a proud panegyric 
upon it, and stigmatizes its censurers (and of course 
himself and the '• virtuous Mably^'') as " pretend- 
ed philosophers," and as shallow and malignant 
declaimers. Admit, however, that this member 
of a score of academies does secmi to have been 
steadily of opinion, that a cruizer, without a 
commission, or something equivalent to a com- 
mission, must be regarded as " a pirate or sea- 
robber" — " Per mara discurrit deprmdandi 
causa, is true, as he tells us, of a privateer, as 
well as of a. pirate. They differ, as he also assures 
us, in this — that the latter pursues all vessels in- 
discriminately, (as Casaregis expresses it,) "■ sine 
patentibus alicujus principis, ex propria tantum 



[ 472 1 

ac pfivnta auctoritate ;" or as Aziini himself 
plirases it, " without any commission or passport 
from any prince or sovereign state ;'' whilst the 
former -ditsicks public enemies only, and has a spe- 
cial authority for that object. Now, although I 
am not convinced that a cruizer (against public 
enemies) is necessarily a pirate, because she wants 
a commission, and am even very sure of the contra- 
ry, I content myself with asking, if all this is not (as 
well as what has been quoted from Vattel) quite 
aside from the case of an armed merchant vessel, 
sailing under the passport of the sovereign, to 
whose subjects she belongs, not as a cruizer for 
prize or plunder, not deprccdandi causa, but for 
comniercial purposes, and upon a commercial 
voyage, and only using her authorized force as an 
assailant when an enemy more feeble than her- 
self comes within her power ? 

But if a thousand such writers as Azuni, or 
even writers of a much higher order, had incul- 
cated (as they do not) the general idea that an arm- 
ed merchant vessel ought only to defend herself, 
and can never attack without becoming criminal, 
I should still have this successful reply, that it is 
not for a general rule that 1 am bound to contend ; 
that the Nereide was an English ship ; and that it 
is, therefore, enough for me to show u|:)on this 
matter the law of England as it has always been 
held by her prize tribunals, and acquiesced in by 
the rest of the world. I might, indeed, maintain 
that when I show the unresisted and uncomplain- 
ed of law and custom of that country upon a 



[ 473 ) 

great maritime subject, I have gone very far to 
show the law and custom of Europe, or at least 
what they ought to be ; but as my purpose does 
not require that I should occupy so wide a field, 
I shall use the Knglish authorities merely as sup- 
porting the doctrine (unquestionable in itself) 
which I have quoted from Ruthvrforth and Vattel, 
and as proving that England has not introduced, 
or made herself a party to, those restraints, which 
the right of otiensive warfare, possessed upon 
original principles, by her armed merchant vessels, 
are alleged to be subject ; but, on the contrary, 
that her government and courts of prize always 
have asserted, in the most explicit manner, the ex- 
istence of this right, and always have encouraged 
its practical exercise. 

When the cases to which I am about to refer 
for this purpose come to be considered, it will be 
proper to bear in mind the distinction between 
the right which a capturing ship acquires in the 
thing captured, and the validity or legality of that 
capture. Without a constant attention to this 
distinction, which is manifestly the creature of 
municipal law, the English authorities cannot be 
understood. In England it depends upon the 
Prize Act and the royal proclamation, who shall 
be regularly entitled to the benefit of prizes. The 
property of all prizes is originally in the govern- 
ment, and it grants that property how and to 
whom it pleases. The interest in prize is gua- 
ranteed only to a commissioned captor. A non- 
eommissioned vessel cannot, therefore, take for 



[ 474 ] 

iier own benefit, but she may lake (and that too 
as an assailant) for the benefit of the King or 
Lord High Admiral, and may expect (and always 
does receive) the whole or a part of the proceeds 
from the justice, or if you choose, the politic 
bounty of the crown, judicially not arbitrarily 
dispensed, as a reward for the capture. If this 
be so, there is no difference, according to the 
English law, between a commissioned and a non- 
commissioned captor, so far as regards the legali- 
ty of the seizures made by them of the property 
of enemies. The sole difference is that a com- 
missioned captor has a positive title (derived from 
the previous act of the government) to the thing 
taken, and that the non-commissioned captor has 
no such positive title, but is referred altogether for 
his reward to what is called the discretion of 
the executive government, which, however, is not 
a capricious discretion, but is to be guided and 
carried into effect by the Court of Admiralty, with 
a view to the circumstances of each case. 

The cases to which I shall refer, (principally 
in Robinson's Admiralty Reports,) will be found, 
as I trust, to be perfectly conclusive on this 
subject. 

The case of the Haase (Rob. A dm. Rep. vol. 
1, p. 286) was that of an enemy ship, taken near 
the Cape of Good Hope, by a non-commissioned 
captor, and condemned by the High Court of Ad- 
miralty as a droit. The capturing ship (which 
was a South Sea Whaler) was the assailant, and 



, [ 475 ] 
took possession of the prize without resistance. 
The Court gave the whole of the proceeds to the 
captors upon the ground o( peculiar merit in fol- 
lowing part of the cargo (which was gunpowder) 
on shore. Now if this capture was piratical, 
the condemnation as prize, and the retcard de- 
creed to the captors by way of encouraging them 
and others to the perpetration of similar outrages, 
will require more apology than the judgments 
of that great man, Sir William Scott, are usually 
supposed to stand in need of. 

In the same book (in a note to the case of the 
Rebeckah, p. 2:31) the orders in council of 1665, 
(containing the grant to the Lord High Admiral 
of such prizes as are now called Droits of Admi- 
ralty) are set forth. The second article is, 
" That all enemies' ships and goods casually met 
" at sea, and seized by any vessel not commis- 
" sioned, do belong to the Lord High Admiral." 
I suppose that nobody can fail to perceive that 
this article expressly recognizes the validity of 
the seizures of which it speaks, without regarding 
who may be the assailants, it being sufficient that 
the ships and goods belong to " enemies," and are 
" casually met at sea." The article not only re- 
cognizes the validity of every such seizure, and 
its legal effect as producing prize of war for the 
crown, but founds upon it a beneficial grant to the 
Lord High Admiral. And the subsequent prac- 
tice has been in conformity with the article, ex- 
cept only that (the office of Lord High Admiral 



[ 476 ] 

being discontinued) the crown now takes the 
prize, (as it originally took it,) subject to the cap- 
tors' claim in the nature of salvage or reward. 

The case of the San Bernardo, in the same vo- 
lume, (p. 178,) was that of a recapture in 1799, 
of a Spanish ship out of the hands of the French, 
by an English non-commissioned vessel. The re- 
captured vessel (being enemy's property) was 
condemned as a droit, and a reward out of the pro- 
ceeds was decreed to the recaptors, although they 
were not, and could not (under the circumstances 
stated) be attacked by either the French vessel or 
the Spanish. Upon this case it is only necessary 
to remark, that if a non-commissioned vessel can- 
not capture an enemy's vessel, (without being first 
assailed,) neither can she recaptui e {y\n\e^» on the 
same condition) an enemy vessel from an enemy 
vessel. In truth, such a recapture is rather a dou- 
ble capture, with reference to those upon whom 
it acts — since it acts upon two belligerents at the 
same time. 

In the second volume of Robinson's Admiralty 
Reports, p. 284, in a note to the case of the Cape 
of Good Hope, the cases of the Spitfire and Glut- 
ton are reported. In both these cases, shares 
were allowed on account of the non-commissioned 
vessels (which not only assailed but chased for a 
considerable time) as Droits of Admiralty. These 
were cases of what is called co-operation be- 
tween commissioned and non-commissioned ves- 
sels ; and, consequently, no cases could more ex- 



[ 477 ] 

plicitly assert the equality (not in point of inno- 
cence only, but in legal effect) between the acts of 
a non-commissioned vessel and those of a cpm- 
missioned vessel in attacking and subduing the 
ship of an enemy. If the acts of the non-commis- 
sioned vessels were on these occasions consider- 
ed as piratical, or in any degree unlawful, or 
otherwise reprehensible, nothing could have been 
less admissible than to let in the crown to shares 
on the foundation of those acts, to the prejudice 
of those who had an acknowledged right by their 
commission, by the King's proclamation, and by 
act of Parliament, to make the captures for their 
own exclusive benefit. And this impropriety 
was particularly manifest in the case of the Spit- 
fire, who, although she chased in concert with the 
Providence, does not appear to have contributed 
to the capture otherwise than constructively. 

If it should be said that the authority of the 
non-commissioned auxiliary captors depended 
upon and arose out of the authority, or out of the 
principal agency, of the commissioned captors 
with whom they acted, the answer is fourfold. 
1st. That none of the other cases support such a 
notion. 2dly. That the authority of the commis- 
sioned captors was not a communicable authority. 
3dly. That if the non-commissioned captors 
acted (in contemplation of law) under the autho- 
rity of the commissions of the other ships, there 
could have been no question about droit — the 
whole would have been disposed of as prize un- 

61 



[ 478 ] 

der the act of Parliament. And, 4thly, that in 
the case of the (ilutton, she (having no commis- 
sion at all ) was, by reason of her being far to 
windward when the prize hove in sight, and of 
her using that advantage with promptitude and 
dextiu'ity, without any orders from, or subserviency 
to, the ships that were commissioned, the main 
cause of the capture, and that it was certified by 
the commanders of the other ships that this was 
so, and that but for the Glutton the capture would 
have been impossible. The Glutton, the non- 
commissioned vessel, leA, therefore, in this enter- 
prize, and the others simply co-operated with her 
as a principal. So that the two cases, taken to- 
gether, affirm distinctly the perfect legality of an 
attack by a non-commissioned captor, whether 
secondarily and in dependence upon, or primarily 
and vas duxfacti) independently of, a commis- 
sioned captor, who co-operates with him ; and, 
consequently, they affirm that a non-commission- 
ed vessel may alone attack, and, if she is able, 
capture. And here it ought to be observed, that 
in the principal case, (the Cape of Good Hope,) 
the universal legality of attack and capture by 
non-commissioned vessels is taken (as how could 
it be otherwise 1) for granted by the Court, andad- 
mitted by every body. Indeed, I feel confident, 
that it is now questioned for the first time. 

To the cases already mentioned, may be add- 
ed that of the Fortuna, (Kob. Adm. Rep. vol. 4, 
p. 78,) as that of a recapture of an English ship, 



[ 479 ] 

with a French cargo on board, by non-commis- 
sioned persons who were not assailed. Tht^ ship 
was restored to her owner, but the cargo was con- 
demned as a fh'oit, and the whole proceeds (of 
small amount) were decreed to the captors. Ano- 
ther protected and rewarded piracy ! 

In the case of the Melomasne, (Rob. Adm. 
Rep. vol. 5, p. 41,) the law is laid down without 
any exception, and in the most precise terms, that 
a capture by a non-commissioned vessel is right- 
ful, although it enures to the benefit of the King 
in his office of Admiralty, in the manner already 
explained. Exclusively of the consideration that 
the Court, in laying down the general rule in that 
case, does not limit it to the case of defence, as 
it would undoubtedly have done if it had con- 
ceived the rule to be subject to that limitation, 
even if the case in which it was pronouncing its 
judgment was not that of an attack, it is decisive 
that by its sentence it sustains the capture (as a 
droit) by the non-commissioned captor, who was 
the sole assailant, and rejects the claim of Cap- 
tain Aylmer of the Dragon, (a king's ship,) who 
claimed the prize against the Admiralty, as having 
been made under his authority, which authority 
was considered by the Court, however, as amount- 
ing to no authority at all, and therefore as leaving 
the case to be dealt with as that of a capture by 
a non-commissioned boat, and consequently a 
capture for the benefit of the crown. 

It would be idle upon such a point to accumu- 



[ 480 ] 

late authorities. It is sufficient to say that the 
High Court of Admiralty of England, which has 
for many years been adorned by the most illus- 
trious of jurists, and one of the most amiable of 
mankind, has been in the habit of offering boun- 
ties to piracy and temptations to licentious plun- 
der, if my learned friend be warranted in his 
doctrine. 

I could, if it were necessary, cite many other 
cases, (some of which will be found in the Ap- 
pendix to the second volume of Dr. Brown's Civil 
and Admiralty f^aw,) but I hold this matter to be 
too clear to be gravely contested in a tribunal like 
this. 

I assume, then, the truth of the position with 
which in this branch of the argument I com- 
menced, and I ask with confidence, if it is to be 
endured, that neutrals shall assemble, on the high 
road of trade for the purposes of any commerce, 
(whether altogether their own or partly their own, 
and partly that of a belligerent, as would seem 
to he the case on this occasion,) ships fitted for 
warlike purposes as well as for defence, belong- 
ing to, and commanded, and managed by the sub- 
jects of a belligerent, and therefore having pow- 
er, as far as it goes, and inclination without limit 
or control, to harm the opposite belligerent by an- 
noying his trade as well as by resisting his right of 
search ? 1 ask if it is to be endured, that neutrals 
shall thus make themselves the allies of the 
English law of droits, an important portion of the 



[ 481 ] 

English system of naval hostility, tremendous 
enough in the actual state of the world without 
its aid ? It is with you to sanction this anomaly if 
you choose, and if you do sanction it, the nation 
must bear the consequences ; but I have a firm 
persuasion that we shall not hastily be saddled 
with a doctrine so fatal in its tendency, especially 
as the authority of your judgment, great as it is, 
will not, undoubtedly will not, obtain for us a re- 
ciprocal sacrifice in any country upon earth. 

[He then proceeds to consider the opposite ar- 
gument, that the text writers on the law of nations 
having made no exception to the general right of 
neutrals to carry their goods in enemy ships, this 
right must extend even to armed vessels.] 

The learned gentlemen refer us in the first 
place to Bynkershoek, and Ward, and Azuni,* 
and other writers upon the law of nations, who are 
imagined to have given opinions upon this point. 
These writers do certainly concur in declaring 
that neutrals cannot be prevented from employing 
the vessels of either of the belligerents for the 
purpose of continuing their lawful commerce ; but 
they lend no colour to the doctrine that the armed 
vessels of a belligerent may, by being so employ- 
ed, be made the means of withdrawing the car- 
go from the inspection of the other belligerent, 

* Bynk. Qusest. Jur. Pub. 1. 1, c. 13. Azuni, vol. 2, p. 194. 
196. (Mr. Johnson's Transl.) Vattel, Droit des Gens, 1. 3, c. 7, 
s. 116, et seq. Grotius. de .1. Bac. P, 1. 3, c. 6. Ward on Contra- 
band, p. 136. 



[ 482 ] 

as well as of augmenting the perils to which the 
unarmed trade of that belligerent WDuld otherwise 
be exposed. The treatises which- have been re- 
ferred to would be very good authorities to prove 
(if it were denied) that enemy ships do not neces- 
sarily make enemy goods. They go so far, and 
no farther. The single purpose of their authors 
was to investigate and condemn the sweeping 
rule, adopted by several maritime states, and at 
one time approved by Grotius — " ex navibus res 
prsedse subjiciuntur." And this purpose did not 
call upon them to settle, or even consider, the 
matter of the present discussion. The question 
whether a hostile flag ought of itself to infect 
with a hostile character the goods of a friend, 
may be answered in the negative, without in the 
least affecting the question, witether, if a hostile 
force be added to the flag, a neutral can advisedly 
hire it without responsibility for the consequences. 
The first question looks exclusively to the nation- 
al character of a commercial vehicle, the second 
to a military adjunct, which in no degree contri- 
butes to constitute that character, or to form that 
vehicle. A ship is as much an enemy ship, tind 
as completely a conveyance for neutral commodi- 
ties, without an armament as with it. An arma- 
ment makes her more than a mere commercial 
conveyance for the purposes of a neutral, by su- 
perinducing warlike accompaniments, and wOrae 
than such a conveyance, by introducing an incum- 
brance unfriendly (nautically speaking) to speed 



[ 483 ] 

and safety. In a word, the general proposition 
that the character of the bottom does not ipso 
jure fix the chara -ter of the goods, is entirely 
wide of a proposition which asserts the effect of 
hostile equipment and resistance, let the bottom 
be what it may ; and, consequently, nothing is 
gained, to the prejudice of the latter proposition, 
by showing that jurists are agreed in favour of the 
former. 

But it is, nevertheless, possible that we may 
discover, either in the terms in which these great 
teachers of legal wisdom have enunciated the 
former proposition, or in their reasonings upon it, 
a sufficiently clear indication of their opinion up- 
on the subject of our inquiry. It is, indeed, to \te 
expected that their language and illustrations will 
point to a universal conclusion, spreading itself 
over every variety and combination of circum- 
stances, if such a conclusion was intended ; and, 
on the contrary, that, if a conclusion, applicable 
simply to the quality and character of the owner 
of the vehicle employed by a neutral merchant, 
was in view, we shall find the phraseology which 
expresses it, and the illustrations which recom- 
mend it, suited to that view. 

The 13th chapter of the first book of Bynker- 
shoek's Qusestiones Juris Publici, to which we have 
been referred, professes to treat " De amicorum 
" bonis, in hostium navibus repertis," and by the 
statement of a doubt ascribed to Grotius — '' an 
" bona amicorum, in hostium navibus reperta, 



[ 484 ] 

" pro hostilibus essent habenda," announces the 
question to be disposed of. This question, rest- 
ing upon the single fact, that the ship in which 
the friendly goods are found, belongs to an enemy f 
obviously inquires nothing more than whether, 
on that account, the goods may be confiscated — 
and throughout the chapter it is so treated. " Nam 
" cur mihi non liceat uti nave amici mei, quan- 
*' quam tui hostis. ad transvehendas merces 
" meas ?" Quare si ejus navem operamque con- 
" duxerim, ut res meas trans mare vehat," &c. 
— " pro mercede ejus uti nave ad utilitatem meam," 
&/C. In all this, and in whatever else the chapter 
contains, there is no allusion to any thing but the 
mere vehicle " ad transvehendas niercesP and to 
the ownership of that vehicle. The phraseology 
is appropriate to define a merchant vessel in her 
ordinary state, with nothing to distinguish her but 
her enemy character. It is not adapted to convey 
the idea of a vessel which has passed into a new 
state by the union of faculties for war with those 
for transportation. 

As to the reasoning, it manifestly stops at the 
point I have mentioned. " Licet mihi cum hoste 
" tuo commercia frequentare ; quod si liceat, lice- 
" bit quoque cum eo quoscunque contractus cele- 
" brare, emere, vendere, locare, conducere, atque 
" ita porro." " Cape quodcunque est hostis tui ; 
"sed mihi redde quod meum est, quia amicus 
" tuus sum, et tmpositione rerum mearum nihil 
" molitus sum in necem tuam." The general posi- 



[ 485 ] 

tion that I have a right to trade with your enemy, and 
consequently to make contracts with liim, is here 
found without any one of the limits which belong' 
to it ; but we know that Bynkershoek could not 
and did not mean to have it so understood. He 
was aware, and has elsewhere shown, that it was 
restricted by the state of war. He knew, for ex- 
ample, that a neutral could generally buy, sell, 
hire, and let to hire, from and to a belligerent : 
but not hire or sell to a belligerent a vessel of 
war, or even a passport ; or contract to send him 
contraband, or to carry his despatches, or to sup- 
ply his blockaded ports, or to disguise his goods 
as his own, or to send him goods to become his on 
their arrival, to save the risk of capture in tran- 
situ. We can only account for his arguing in this 
place upon the general right without noticing any 
modification which war imposed upon it, by sup- 
posing that he was reasoning upon the common 
condition of neutral traffic unassociated with the 
use of force, or with any other hostile quality, and 
in no situation to come in collision with any of 
the parties to the war. And this supposition is 
confirmed by the quiet assumption (without proof) 
with which the observation last quoted concludes, 
that by the employment of the enemy ship the 
neutral attempts nothing to the pr'ejudice of the 
opposite helliiierent. This assumption was not 
unnatural, if none but an unarmed vessel was in 
his mind : but if his view extended to a ship pro- 
vided with warlike equipment, it was rather an 

62 



[ 486 ] 

extraordinary postulate for so able a reasoner as 
Bynk«rslioek to assume. 

The passage in the controversial treatise pub- 
litshed by Mr. Ward in 1801, on the relative rights 
and duties of belligerent and neutral powers,* 
wdiich has been referred toon the other side, runs 
thus : ' The right of an impartial neutral to con- 
" tinue his trade with each belligerent, so long as 
" that trade can in no respect do injury to 
" either, is certainly uncontested and incontesti- 
" ble ; and it would be difficult to show the in- 
"jury. or what interference there is in the war, by 
" placing such goods as are sacred, from their 
" neutrality, and have, therefore, a right of pas- 
" sage all over the world, under the care and pro- 
" tection of a belligerent flag. Something in 
" point of prudence may be urged, to prevent 
" their being exposed to the accidents of war ; 
" but if the neutral chooses to risk this, it is im- 
" possible, I think, to conceive a well-founded rea- 
^' son for supposing, that any confliction of rights 
" between him and the other belligerent can arise 
" from the procedure. This, then, seems an in- 
" nocent, and, therefore, a natural right in the neu- 
*' tral ; as such formed one of the provisions of 
" the consolato, and as such was approved by 
'' Bynkershoek," &c. (Q. J. Pub. c. xiv.),p. 136. 
Now what is maintained in this passage is, that a 



*[The title of this book is " An Essay on Contraband : being 
a continuation of the Treatise of the Relative Rights and Duties 
of Belligerent and Neutral Nations in Maritime Affairs."] 



[ 487 ] 

neutral may trade in a belligerent vessel and under 
a belligerent flag, in opposition to the doctrine, 
that the national character of the ship ought to 
conclude that of the cargo — or as he elsewhere 
phrases it, "that all should obey the national 
character of the ship." The author states ex- 
pressly, that the right of which he is speaking, and 
which only he had in his view, formed one of the 
provisions of the consolato, and was approved by 
Bynkershoek. What right was approved by Byn- 
kershopk, we have already seen ; and every 
body knows that the consolato refers only to the 
property of the vessel, and makes no provision 
for the case of a military equipment which nothing 
but a direct provision could sanction. Besides, 
the main ground upon which Mr. Ward places 
the right is that the goods are sacred from their 
neutrality. Now it is impossible that this should 
he known without the exercise of that right of 
visitation and search, to which he insists that eve- 
ry belligerent is entitled : and consequently he 
must mean that the belligerent vessel which 
carries the goods said to be neutral, is not to be in 
a situation to contest by force the exercise of that 
right. Moreover, the expressions, " so long as 
" that trade can in no respect do injury to either" 
show his meaning to be that it is not to be a 
trade, which provides resistance to the right of 
search, and increases the hostile means of one of 
the belligerents on the seas. And, agciin. wheis in 
his reasoning he says that he cannot conceive 



[ 488 ] 

how the privilege which he admils can produce 
" any confliction of rights" between the neutral and 
the opposite belligerent, it is quite impossibh,' that 
he should have in his mind the case of a delibe- 
rate resistance to that very right of visitation and 
search which it was the great object of his trea- 
tise to uphold. 

In truth, Mr. Ward is in this place contending 
that the principle of " free ships free goods" is 
not *' a natural right," — and he endeavours to 
prove it by showing (among other things) that the 
principle which is usually associated with it in 
treaties, — that " enemy ships shall make enemy 
goods" is a violation of natural right. For this 
purpose it was not necessary to discuss or decide 
the present question : and. accordingly, he does 
not meddle with it, unless what he says about " the 
accidents of war," to which neutral property is 
exposed in belligerent vessels should be thought 
to touch it. 

The first passage referred to in Azuni's book 
amounts only to this — that neutrals cannot be 
prevented from employing the vessels of either of 
the belligerents for the purpose of continuing their 
peace trade, unless by interfering in the war 
" they depart from that perfect neutrality which 
" they are bound to observe.^' It is a gratuitous 
supposition that this passage was meant to in- 
clude vessels fitted for aggression and resistance. 
Nay — the supposition is worse than gratuitous. It 
is impliedly forbidden by the reference to the 



[ 489 ] 

peace trade of the neutral as that which is to be 
authorized in the vessels alluded to, and by the 
exception of all cases in which the neutral inter- 
feres in the war, or in any degree deserts his 
neutrality. 

Such a large exception goes the whole length 
of my doctrine, if it means any thing : and there 
was no necessity to make it special, unless it was 
presumed that common sense had left the world. 
It was too obvious to require any particular men- 
tion, that it was an interposition in the war and 
inconsistent with pure neutrality to employ a 
vessel equipped for battle and certain to engage 
in it (to exempt the neutral from the observance 
of his known duties) if it could be done with a 
prospect of success, and certain also to act offen- 
sively if a suitable occasion presented itself. It 
was enough to lay down the wide caution against 
a7iy use or employment of hostile force, which not 
being capable of any check, on account of the 
direction to which it is subject an*! the disposition 
which belongs to it, cannot be employed without 
embarking in the war and taking an unneutral 
attitude. We are told by Ward, (vol. II. p. 10,) 
in the language of Hubner, who has been called 
" the great champion of neutral rights," that 
'' Toute neutralite consiste dans une inaction en- 
** tic7'e relativement a la guerre .*" And I know 
not how a neutral can be said to be wholly inac- 
tive relatively to the war, who allies himself by 
eompact with warlike means and hostile disposi- 



[ 490 ] 

tions and intentions, which, when he has once con- 
nected hinuself with tliem, he knows he cannot 
restrain, and to which he alone gives all the acti- 
vity and all the power of mischief which they pos- 
sess. It is difficult to conceive how he who has 
prepared and hired the power of warlike combat, 
with a knowledge that the desire, duty, and deter- 
mination to combat are united with that power, 
can be said to be thus inactive, and especially 
when combat has actually followed his arrange- 
ments as their regular consequence. Self-evident 
propositions do not require to be set forth in de- 
tail, and the wonder is that we should expect it. 
On the other hand, if a neutral can do this, it is 
but reasonable to suppose that his right to do so 
would be stated with precision even by such scio- 
lists as Azuni. 

But if the exception in Azuni does not plainly 
exc-lude, (as I have no doubt it does,) from the 
neutral's privileges, the employment of ships 
eqi.'ipped for battle, it does at any rate reduce all 
that he says as an authority on the extent of that 
privilege to nothing, since the phraseology in which 
Azuni has defined the privilege is at least as equi- 
vocal as the exception. An ambiguous general 
rule given by a feeble writer, who qualifies it by 
an ambiguous general exception, may afford mat- 
ter for controversy, but can scarcely contribute to 
settle one. 

Heineccius, Grotius, Hubner, Vattel, and oth- 
ers are quoted by Azuni, (vol. 2, p. 194, 195,) 



[ 491 ] 
but they simply state, what doubtless A zuni meant 
to state, the general doctrine (which I d(. not mean 
to dispute, although it was once disputed) that 
friendly goods are not prize merely because taken 
in a vessel belonging to the enemy. It is impos- 
sible to make any thing like an authority, for the 
doctrine of the learned counsel, out of any or alF 
of these loose dicta, the subject of which was, as I 
have already said, the effect of the flag and owner- 
ship of the vessel upon the character of the cargo. 

The other passage in A zuni which the counsel 
refers to is no more to his purpose than that which 
I have examined. 

" Belligerents have no right over the effects of 
" friends and neutrals, in whatever place they 
" may be found, though within the territory or in 
" the vessels of enemies. For this reason, when a 
" maritime city is taken by assault, or in any 
" other way, the belligerent cannot seize the neu- 
" tral vessels found in the port, nor their cargoes, 
" unless they are contraband of war, and unless 
" the captains have taken up arms or voluntarily 
" seconded the enemy in their resistance. For 
" a stronger reason ought the goods of neutrals, 
" found on board the ship of an enemy, to be con- 
*' sidered as free, since it cannot be regarded as 
" the territory of the enemy." 

Now there is nothing in this passage which re- 
quires to be noticed, save only what relates to neu- 
tral vessels and cargoes found in the port of a 
captured city, which seems to be much confided 



[ 492 ] 

in by the learned counsel as favourable to his 
case ! I shall concede that the law is as Azuni 
states it. 1 only marvel that it is thought to have 
any bearing upon the present subject. 

It cannot be doubted that a neutral who is found 
on a lawful errand, in a captured place on land 
with which he has contracted no hostile obliga- 
tions of any sort, (as is supposed in the case put by 
Azuni) is innocent in every view, and cannot be 
the lawful object of hostility : if it were otherwise, 
every belligerent maritime city would be in a state 
of constructive blockade of a perfectly new in- 
vention. The supposed position of the neutral 
relatively to the captured place necessarily ex- 
cludes the idea of penalty. He has not given, 
or contributed to give to that place the military 
capacity which it has exerted. He did not erect, 
or assist in erecting its fortifications, in levying 
or paying its garrison, in furnishing its arms or 
stores. He has not hired those fortifications with 
their appendages, or in any way produced or in- 
creased their means of annoyance or defence. 
He has no connexion with the place, further thnn 
that he is in it, upon a fair and altogether neutral 
motive, not injurious to any body, or capable of 
becoming so. But suppose that, for the purposes 
of his trade, or for any other purpose, he had 
hired the fortresses, the troops, the cannon, the 
ammunition, the'provisions, and all the means and 
implements of war, with which, as with a milita- 
ry force, he had united himself and his concerns. 



[ 493 ] 

Suppose that the fortifications had been erected 
• for his accommodation, or being erected before, 
had become his by special covenant, that but for 
his views and conduct they had been impotent and 
harmless, or had not been there at all : suppose, 
in a word, that he is not only the tenant of them, but 
creator of all that constitutes their faculty to mis- 
chief his friends, and that he has left the command 
of them to those who are at public enmity with these 
friends, without res^erving any power in himself 
to counteract the effects of that enmity, and that 
then he has placed his property and himself un- 
der their auspices ! Will the learned gentleman 
tell us that he and his property would then be neu- 
tral in the view of those by whom the place is as- 
sailed and captured, and against whom it has used 
the power which he has furnished, or contributed 
to furnish to it ? I am sure he will not. Yet this 
is the analogous case. The Nereide was a move- 
able fortress which the claimant brought upon the 
seas. She would not have been there but for 
him. Her armament was his armament. Her 
power was his power. He drew that armament 
and that power into conflict, or into the opportu- 
nity of conflict with the opposite belligerent, with 
a thorough conviction that conflict and opportu- 
nity would, and must be the same thing. From 
the master to the meanest sailor, every man on 
board, fought at his cost and by his original pro- 
curement. But in the other case, it is a^ssiimed 
by Azuni that the neutral has nothing to do with 

65 



[ 494 ] 

the matter. He entered the place before it was 
attacked. He had the clearest right to do so. He 
sought no protection from the force on which it 
relied for its defence. He did nothing towards 
the organization or maintenance of that force. 
He made no covenant with it, or its owners. He 
did not employ it, or assist in its operations : and, 
consequently, had no more connexion with it than 
if he and his property had been on the opposite 
point of the globe. The place would not have 
been the less attacked if he and his property had 
not been in it, nor would it have been better or 
worse defended. The whole transaction passes 
without involving or touching him in the slightest 
manner. 

We have then, at the threshold, a wide distinc- 
tion between Azuni's case and ours : but this is 
not all, although it is sufficient. The resistance 
of a city attacked by its enemies cannot be incon- 
sistent with the obligations of a neutral who finds 
himself there, unless he mixes in it. What right of 
the assailing party is that resistance calculated 
to violate with regard to him? Certainly none. 
The right of visitation and search (the only one 
that can be imagined to be material in this view) 
does not apply to the subject. He is, for the pre- 
sent, rightfully out of the reach of it : and can, in 
fact, do nothing to facilitate visitation and search 
otherwise than by taking his goods out of port 
to the assailant, or by co-operating with the assail- 
ant to subdue the place. The first, undoubtedly, 



[ 495 ] 

he is not obliged to do, and probably cannot, and 
will not be permitted to do, even if there be time 
for it. The second would make him a traitor to the 
city which had hospitably received him. During the 
contention of two hostile forces, (neither of which 
he has raised up, or fostered, or adopted,) he 
is justified in remaining a mere spectator, and 
is bound to do so. The right of visitation and 
search, therefore, (of which, indeed, the ocean is 
the only theatre,) is not infringed on this occa- 
sion. What other right then is violated ? I know 
of none : 1 have heard of none. But this is not 
so in our case, if we have succeeded, or should 
yet succeed, in proving that the claimant acted un- 
lawfully from the first preparation of his expedi- 
tion to its last catastrophe — that he violated his 
neutral duties by employing hostile force at all — 
and that when this hostile force resisted the visi- 
tation and sefirch of an American cruizer, the 
climax of illegality was completed. 

It is said, however, that Mr. Pinto, as a mer- 
chant of Buenos Ayres, had a peculiar justifica- 
tion for this armament, in the danger to his pro- 
perty and himself produced by the cruizers of 
Carthagena ; that it was the usage of this trade, 
and the only adequate mode of carrying it on, be- 
fore the breaking out of the war between the 
United States and England ; and that Mr. Pinto 
intended no resistance to United States' cruizers. 

As to his intentions, I do not profess to know, 
with certainty, what they were, and I suppose 



[ 496 ] 

that his counsel know as little of the matter as I 
do. It may be very well for them and him to say 
that it was not his intention that the privateers of 
the Vnited States should be resisted, when they 
could be resisted with a prospect of success, and 
thus be prevented from interrupting a voyage, 
which promised to be so lucrative, by the cap- 
ture of the vessel in which he was performing 
it : but I am not apprized of the proofs by 
which he could be judicially exculpated from 
such an intention if I chose, as my learned col- 
league has done, to press it against him. I do 
not think it material, however. For let his inten- 
tions in this particular have been what they might, 
the law infers from his conduct all that my argu- 
ment requires. Mr. Pinto set in motion upon the 
Atlantic a warlike force, hostile hy notorious duty 
to the United States, a duty which he was bound 
to know he could not neutralize, and the effects of 
which he was also bound to know he could not 
check. Every man must be taken to intend, 
where intention is important, the natural and or- 
dinary results of his own acts. The municipal 
law of our country, and every civilized country, 
proceeds upon that rule, so as always to create 
responsibility for those results. The particular 
intention does not need to be inquired into. It is 
enough that the result in question ought to have 
been foreseen. Thus (to put a familiar case) if 
a man rides a horse, accustomed to strike, into a 
crowd, upon an errand ever so lawful, he is liable 



[ 497 ] 

for the mischief which ensues, whether he intend- 
ed that mischief or not. 

The natural consequences of Mr. Pinto's acts 
were, that if an American cruizer (not of an over- 
whelming force) met him in his voyage, resistance 
would be made, even if he should forbid it, to tlje 
riffht of that cruizer to examine his property ; and 
that, if he was met by an unarmed American ves- 
sel of sutiicient value to tempt the commander of 
the Nereide, that vessel would be assailed. The 
first of these consequences has happened, and by 
every system of law known to mankind would be 
visited with penalty. 

The right of Mr. Pinto to make a provision of 
defensive force against Carthagena cruizers can- 
not serve him in this cause. If he armed for 
limited purposes, it was for him to take care that 
he suited his armament to those purposes, and that 
its exertions were confined to them. He could not 
arm in such a way as to give uncontrollable power 
(where there already existed the desire) to exceed 
those purposes to the injury of those against whom 
he had no right to arm. If he does so arm, all 
that I insist is that he does it at his peril. If his 
purpose is exceeded, from causes palpably inhe- 
rent in the nature of the armament, and the direc- 
tion under which it is placed, it cannot be unrea- 
sonable to say that he must at least answer for 
that surplus, if it were only upon the maxim re- 
spondeat superior ; a maxim as universal in the 
law of prize as any maxim can be : for although 



^ [ 498 ] 

in the municipal law it generally imports only civil 
responsibility, in the jus gentium it produces con- 
fiscation. Even in the municipal law it is a cardi- 
nal rule sic utere tun ut alienum uon ladas; and 
this rule applied to Mr. Pinto would of itself re- 
strict his right of arming to a mode that would be 
compatible with the rights of others. He who 
should go into the streets accompanied by a mastiff 
of a surly and ungovernable temper and accustomed 
to bite, (I mean no slur upon any body by this 
homely comparison) even although he goes up- 
on lawful business, and makes the dog his com- 
panion with a view to his defence against some 
ruffian who has threatened him, must abide the 
consequences if his associate bites those who are 
his master's friends, and who have, moreover, a 
right to stop him on his way for the purpose of 
some inquiry, and who have been bitten in the at- 
tempt to exercise that right. 

As to what is said of the manner of carrying 
on this trade before the breaking out of the war 
between the United States and England — is it 
meant to tell us that a trader continues after the 
breaking out of a war to have all the rights which 
he possessed before, merely because he is a neu- 
tral? That the war does not affect all his previous 
rights or habits I admit ; but it does affect them 
largely, nevertheless ; and it affects them exactly 
as far as his former rights and habits would now 
in their exercise and continuance be an interfe- 
rence in the war. Thus before the commence- 



[ 499 ] 

merit of hostilities he could carry articles usually 
denominated contraband of war. After hostili- 
ties commence, he does so at the hazard of seizure 
and confiscation, even if his peace traffic had 
been to a great extent, or altogether in such arti- 
cles. And why is this so ? Simply because the 
carrying of such articles in peace was injurious 
to nobody, but upon the breaking out of the war 
does injury to one of the belligerents with refer- 
ence to the war. And various other instances 
might be given of the same class. If, indeed, that 
which was the previous trade of a neutral has no 
relation in its substance or manner of conducting 
it to hostility, the war does not affect it otherwise 
than by producing detention for inquiry and 
search; but when it has that relation ; as it al- 
ways has when by seeking the armed ships of a 
belligerent it generates collisions) the war invari- 
ably affects and reduces it. 

Even if it be true, therefore, (of which however 
there is no proof in the cause) that l>ritish armed 
vessels had before been used in this trade, the 
moment the war broke out between the United 
States and England, the continuance of that prac- 
tice became as completely unneutral as did the 
carrying of articles of contraband, and became lia- 
ble to the same penal visitation. It would be idle 
to multiply words upon such a point. 

It has further been suggested that if JVlr. Pinto 
had not used an armed ship of England, he could 
not have undertaken his voyage at all. Be it so. 



[ 500 ] 

Although there is no evidence to countenance 
such an apology, I am willing without reserve to 
admit the fact, while I utterly deny the conclusion 
of law. We are fallen upon strange times, when 
every sort of absurdity — I beg my learned oppo- 
nents to pardon the accidental freedom of this 
expression, and to believe that I respect them 
both too much to be willing to give umbrage to 
either. To one of them, indeed, I have hereto- 
fore given unintentional pain, by observations to 
which the influence of accidental excitement im- 
parted the appearance of unkind criticism.* The 
manner in which he replied to those observations 
reproaclied me by its forbearance and urbanity, 
and could not fail to hasten the repentance which 
reflection alone would have produced, and which 
I am glad to have so public an occasion of avow- 
ing. I oflfer him a gratuitous and cheerful atone- 
ment — cheerful because it puts me to rights with 
myself, and because it is tendered not to ignorance 
and presumption, but to the highest worth in in- 
tellect and morals, enhanced by such eloquence 
as few may hope to equal — to an interesting stran- 
ger whom adversity ha.s tried and affliction struck 
severely to the he irt— to an exile whom any 
country might be proud to receive, and every man 
of a generous temper would be ashamed to 
offend. I feel relieved by this atonement, and 



♦ [In the casp of the Mary, argued at the same term, in which 
Mr. Emmet fof counsel for the captors) spoke, as Mr. Pinkney 
supposed, a little too harshly of one of the claimants.] 



[ 501 ] 

proceed with more alacrity. I say that it is pass- 
ing strange that in the nineteenth centurv we 
should have it insinuated that the provisions of 
public law, or of any law, are to hend before the 
private convenience of an individual trader. 1 he 
law of nations did not compel Mr. Pinto to trade. 
It allowed him to do so, if he could with inno- 
cence. It did not convert his right's into obliga 
tions : It left them as it found them, except only 
that it impressed upon them (with a view to the 
state of war which had supervened) the condi- 
tions and qualifications annexed to his predica- 
ment as a neutral. If he could safely and advan- 
tageously trade in this new state of his rights, it 
was well ; if not, it was either his duty to forbear 
to trade at all, or to make up his mind to defy the 
consequences. And is this such a harsh alternative ? 
Is it not the dilemma to which God and the laws 
have reduced us all — and some of us more ejn- 
phatically than others ? Is not the vocation of 
every man in society more or less limited by posi- 
tive institution, and does not the law of nations 
deal with, what I may call, a benignant profusion in 
such limitations ? War brings to a neutral its bene- 
fits and its disadvantages. For its benefits he is in- 
debted to the lamentable discord and misery of 
his fellow creatures, and he should, therefore, 
bear, not merely with a philosophic, but with a 
Christian patience, the evils with which these be- 
nefits are alloyed. It is fortunate for the world that 
they are so alloyed, and heaven forbid that the 

64 



[ 502 ] 

time should ever arrive wlien one portion of the 
human race should feel too deep an interest in 
perpetuating the destructive quarrels of their 
brethren. 

But is there any thing new or peculiar in this 
alternative ? What is the predicament of a neu- 
tral merchant domicile<l before the war in one of 
the belligerent countries ? Is he not called upon 
by the law of prize to cease to trade, or to trade 
upon belligerent responsibility ? Does not that 
law tell him, "Abandon your commerce! al- 
though it was begun in peace, and perhaps esta- 
blished by great sacrifices, prepare to find it treat- 
ed as the commerce of the belligerent with whom 
you have identified yourself?" Does it not an- 
nounce the same sentence to the dealer in articles 
of contraband — to the trader with ports which 
the belligerent chooses to blockade — to the ship- 
owner who has transport vessels to let to foreign 
governments? In those cases, it does not say — 
you shall not trade, or hire your ships as you were 
used to do — but merely that if you do, and are cap- 
tured, your property shall be forfeited as if it were 
the property of enemies. I ask if the man who 
lives with innocence, in peace, upon the profits of 
carrying contraband articles is less oppressed by 
the alternative which is presented to his choice, 
than Mr. Pinto by that which I hold was tendered 
to him, if his situation be truely stated, not ex- 
aggerated by his counsel ? I ask if his situation 
was worse than that of any other neutral whose 



[ 503 ] 

ordinary peace-traffic is reduced or annihilated by 
the mighty instrumentality of war ? 

But it is said that the resistance which was 
made, was a rightful resistance on the part of the 
commander of the Nereide, by whom it was 
made in fact. It was so. And can Mr. Pinto 
take refuge behind the peculiar rights of his as- 
sociates without sharing the legal effects of their 
defeat ? Nothing could be more intolerable than 
such a doctrine. A belligerent has a right to 
break a blockade if he can. But can a neutral, 
therefore, put himself under the shade of that 
right, and in case the belligerent master should 
make the attempt and succeed, take the profit, 
and if he fails, claim immunity from confiscation 
by an ingenious reinforcement of his oWn rights 
with those of the belligerent master ? Or if the 
conduct of the belligerent master shall be thought 
to be insufficient to impute to the owner of the 
cargo the ?neiis rta in the case of blockade, by a 
sweeping presumption that the vessel is going in- 
to the blockaded port in the service of the cargo 
only — what shall we say to the case of contra- 
band, which must be put on board by the owner 
with a knowledge that it will be exposed to the 
peril of capture, and if captured to the certainty 
of confiscation ? A belligerent master has a right 
to carry contraband if he can — and only superior 
force can prevent him. But, surely, a neutral can- 
not so avail himself of that right, as to ship in 
safety contraband articles in a belligerent vessel, 



[ 504 ] 

If he could, he would have a larger and more ef- 
fectiial right than that under which he takes 
shelt(;r ; tor the belligerent's right is subject to 
be defeated by force, and so much of his pro- 
perly as is engaged in the enterprize becomes 
prize of war, if he is conquered. Just as in this 
case, his right of resistance is met on the other 
side by a right to attack and seize as prize, and 
every thing depends upon the issue of the com- 
bat. It is, indeed, self-evident that a neutral, 
wlio is (Iriv'in to rely upon the rights of war, vest- 
ed in others, not himself, leans upon a broken 
reed, if those rights fail of being successfully 
maintained against the opposite party to the war : 
and sure I am that no case can be imagined, in 
which a neutral can cover himself with the right 
of a belligerent whom he chooses to employ, 
and thus claim the combined advantages of a bel- 
ligerent and a neutral character. If he can ad- 
vance such a claim, the cases of domicil have all 
been adjudged upim false principles, for they ex- 
pressly affirm the contrary, and stand upon no 
other reason. 

But the true light in which to view this point 
is, that the right of resistance vested in the bel- 
ligerent master is precisely that which aggra- 
vates instead of taking away the guilt of the neu- 
tral charterer, or in other words, is exactly the 
consideration which ought to make the resistance 
his own in the eye of the law, and, consequently, 
to render him and his property liable to share 
the fate of the belligerent master and vessel. 



[ 505 J 

It is indisputable that if Mr. Pinto, instead of 
chartering the .Nereide, liad hired a neutral ship, 
antl the neutral master, without his concurrence, 
had resisted visitation and search, the goods of 
Pinto would have been prize as well as the neu- 
tral vessel. We have for this the express autho- 
rity of Sir Wdliam Scott, in the celebnited case 
of the Swedish convoy and others.* *' The 
" penalty for the violent contravention of this 
" right, is the confiscalioil of the property^^ (cargo 
" as well as vessel) " so withheld from visitation 
" and search." 

Upon what ground is the cargo forfeited in that 
case ? Upon the ground that the master's resist- 
ance withholds the cargo from visitation and 
search, and that the owner of it is answerable for 
the master's conduct in that respect, although the 
master is not, strictly speaking, the agent of the 
cargo, and the owner of the cargo is not gene- 
rally affected by his acts in the view of a Court of 
Prize. The extension of the penalty of confisca- 
tion to all the property, withheld by the resistance 
of the neutral master from visitation and search, 
whether it belongs to the owner of the vessel or 
not, proceeds, undoubtedly, from the importance 
attached to the right with which such resistance 
interferes— to a right without which all the other 
belligerent rights with which the law of prize is 

*The Maria, Rob. Adm. Rep. vol. 1, p. 287. The Elseb^ 
Rob. Adm. Rep. vol. 5, p. 174. The Catharina Elizabeth, ih. 
232. The Despatch, Rob. Adm. Rep. 280. 



[ 506 ] 

concerned, are mere shidovvs. The owner of a 
neutral cargo, forfeited by the resistance of the 
master of a neutral ship, would seem to have 
some show of reason for his complaint against the 
rigour of such an indiscriminate punishment of 
the innocent and the guilty. He might urge with 
great plausibility, that as he had not partaken in 
any manner the resistance — as he not only did not 
comttiand, but did not wish it — as he was justi- 
fied, when he shipped his goods, in relying upon 
the presumption that a neutral master would fulfil 
his neutral duties, and would not have recourse to 
hostile resistance to the right of visiting and 
searching his vessel and those goods, he ought 
not to, be made accountable for that resistance. 
But with what plausibility can the charterer of a 
belligerent vessel, which has by resistance with- 
held his property from visitation and search, claim 
to be exempted from the utmost severity of the 
rule ? When he chartered such a vessel and ship- 
ped his goods, had he any ground for presuming 
that the belligerent master would forbear resist- 
ance to an enemy cruizer ? Did he not, on the 
contrary, know that he would resist, and that it 
would be out of his power to prevent him ? Did 
he not go to sea with an absolute assurance that 
his goods would be withheld from the visitation 
and search of the opposite belligerent by all the 
resistance that could be made ? Nay, further* — 
is not the neutral owner of the goods interested 
that resistance should be made, even with refer- 



[ 507 ] 

ence to the vessel, when it can be made effectu- 
ally — since if the vessel be seized as prize, the 
voyage is broken up, and the hopes of profit 
which depended upon it utterly blasted ? Such 
was Mr. Pinto's predicament ; and it will not be 
believed that he would see with disapprobation 
the repulse of a cruizer of this country attempt- 
ing to capture the Nereide, and to carry her any 
where but to Buenos Ayres. 

With regard to a neutral, therefore, who char- 
ters an armed belligerent vessel, the penalty of 
confiscation for resistance by that vessel is unim- 
peachably just. If it is established that a neutral 
should be responsible for the resistance of the 
master of a neutral vessel, which he could not 
foresee, had no reason to expect, and no interest 
to produce, can it be unfit that he should be re- 
sponsible for the regular and foreseen resistance 
of the master of an armed belligerent vessel char- 
tered by him, which resistance he could not help 
foreseeing, which if he did not direct, he must 
have confidently expected, and which his interest 
required should be made as often as it happened 
to be practicable ? It would be intolerable that 
he who has done every thing which by all reason- 
able calculation would subject his property to 
the full* exercise of the right of visitation and 
search, shall be punished with confiscation for 
the disappointment of that calculation, and that he 
who has done every thing which was adapted to 
defeat that right, and who has spontaneously given 



[ 508 ] 

himself an interest in defeatinfir it, should be re- 
warded with restitution, (or to speak more cor- 
rectly,) by a concession of all the benefits of suc- 
cessful resistance, and by an exemption from all 
its penal consequences in case of failure. 

I stand upon all just principles of law and rea- 
son, therefore, when I say, that the known right 
and inclination of the master of the Nereide, 
combined with his capacity, obtained at Pinto's 
expense, to resist a cruizer of the United States, 
is so far from being a foundation on which to 
build his innocence, that it is the clearest and 
most conclusive inducement to consider his pro- 
perty as prize. If one were called upon to select 
a case in which the confiscation of the carofo of a 
resisting vessel was not only lawful, but equitable, 
it would be a case in which a neutral abusing the 
indulgence extended to him by the modern law of 
nations to employ a belligerent vehicle, employs 
just such a vehicle as under belligerent co nmand 
and conduct will inevitably be made to withdraw 
his property from examination, so far as its physi- 
cal force can so withdraw it. And certainly a 
greater anomaly can scarcely be conceived, than 
that I shall answer for the hostile conduct of him, 
upon whose neutral and peaceful conduct I was 
warranted, when I employed him, to rely ; and yet 
shall not answv^r for the hostile conduct of him, 
from whom T was warranted, when I employed 
him, in anticipating nothing but hostility and vio- 
lence ! 



[509 ] 

f iVfr. Pinkney then examined the case of the 
Swedish convoy in 1798, and insisted that th«^re 
was no difference between a ship sailing under 
protection of a resisting convoy and goods found 
in a resisting sliip ; that it was ad'nitted both by 
the counsel for the claimant and by the Court, 
in that case, that the distinction between an ene- 
my convoy and a neutral convoy was unfavoura- 
ble to the former, inasmuch as the enemy convoy 
stamped a primary character of IjostiHty on all 
the vessels sailing under its protection, which 
presumption the counsel seemed to think might 
be rebutted, but which Sir William Scott con- 
sidered to be a conclusive presumption ; and that 
the distinction between hostile and neutral con- 
voy, favourable to the latter, was, that where the 
convoying force was neutral, the captors must 
show an actual resistance, which in the case of the 
Maria was shown (among other things) by the in- 
structions of the Swedish government, authorizing 
such resistance, which were relied upon, not as 
constituting a part of the offence, but as rendering 
it probable that there was actual resistance, whilst 
in the case of the Nereide, the intention to re- 
sist, (independent of the fact,) was rendered cer- 
tain by the general hostile character of the force 
employed. I regret that I have not the means of 
restoring this part of the argument, which I un- 
derstand was of great force and beauty : but it is 
irrecoverably lost. In the case of the Maria, tlie 
eounsel for the claimant, in contending that the 

65 



t 510 J 

presumption arising from a hostiU convoy was not 
conclusive against the ships and cargoes sailing 
under its protection, cited the case of the Samp- 
son, Barney, before the Lords of Appeal, an as- 
serted American ship taken under French convoy, 
and communicating with the French ships by sig- 
nal for battle, which they said the Lords had sent to 
farther proof to ascertain whether there had been 
an actual resistance. To which intimation Sir W. 
Scott observed : " I do not admit the authority of 
"that case to the extent to which you push it. 
" That question is still reserved, although the 
" f.ords might wish to know as much of the facts 
" as possible." And I may be excused for adding, 
that Mr. Justice Story, in his judgment in the case 
of the Nereide, states that the sentence of con- 
demnation in the Sampson, Barney, was subse- 
quently affirmed by the Lords.*] 

The case of the Catharina Elizabeth (Rob. 
Adm. Rep. vol. 5, p. 232) has also been produced 
against us. It would seem, indeed, that my learn- 
ed friend entertains some doubts of its applicabi- 
lity to that of the Nereide, since he rather invites 
our attention to the brief marginal summary of 
the reporter than to the case. The marginal note 
says : '^^ Resistance by a/n enemy master will not 
" affect the cargo, beins: the property of a neu- 
" tral merchant ;" and my learned friend, taking 
or rather mistaking this for a universal position, 

^ * Cranch's Reports, vol. ix, p. 442. Note. 



[ 511 ] 

is so well satisfied with it that he desires to look no 
farther, and would have us trouble ourselves as litile 
as possible with the reasoning of the Court and the 
particular circumstances of the transaction, by 
which the Reporter (certainly a very excellent and 
able man) took for granted that his note would be 
qualified. Dr. Robinson meant only to say that 
the resistance of the enemy master, on that occa- 
sion, did not affect the neutral cargo ; presuming 
that the reader of his note would read the judg- 
ment to which it belonged, and in which he could 
not fail to find the nature of that occasion. This 
is what I have done, and what I trust your Ho- 
nours will do. " Territus insisto prioris margine 
ripse,"* may come with a good grace from the 
learned counsel whose interest it is to take refuge 
there from the doctrine of the case itself; but it 
does not suit me. I shall on the contrary pass to 
the case from the margin. 

Now what is that case ? An enemy master en- 
deavours to recover his captured property, or 
rather (as appears to have been the fact) to take 
the captured vessel ; and Sir William Scott in- 
forms us that there is no harm in this, as regards 
the enemy master himself, and that it is quite clear 
that it cannot affect the neutral owner of the car- 
go. As to the enemy master, the quotation from 
Terence (" Lupum auribus teneo,") explains the 
whole matter. If I capture an enemy I must 

* Territaque insisto prioris margine ripee. 

Ovid, Lib. v., Fab. ix, 1. 597- 



[ 512 ] 

take care to hold him. He is not bound (unless 
under parole) to acquiesce ; and if when oppor- 
tunity offers he tries to withdraw himself and his 
property, or even to capture the captors, he does 
just what might be expected and what he has a 
right to do. He violates no duty, and infringes 
no obligation. I admit all this to be perfectly 
true ; and I am ready to admit, if it will be of any 
service to the claimant, that the captain of the 
Nereide had a right, not only to resist the Gover- 
nor Tompkins, but to capture her if he could. 
What 1 object against the claimant is, not that the 
captai7t of the Nereide resisted unlawfully, with 
a view to his own rights, but that the claimant 
whose property was liable to unresisted visitation 
and search, and whose rights and obligations were 
very different from those of the captain of the 
Nereide, had identified himself with him, and was 
a party to that resistance, inasmuch as he was the 
hirer of the force with which it was made, know- 
ing its hostile character, and had associated it up- 
on the ocean with his property, aware of the hos- 
tile control to which it was subject. For a force, 
thus qualified, and so employed by a neutral, I say 
that he is responsible upon the plainest grounds 
of law and reason, if it be used (as from its na- 
ture it must be) in a way in which he is not autho- 
rized to use it. I say, further, that a neutral cannot 
at all employ such a force, placed under such 
hostile control, without guilt ; and that he incurs the 
confiscation of his goods if they are found connect- 



[ 513 ] 

ed with it, although there be no resistance on ac- 
count of its being hopeless. 1 say, further, that if 
a neutral will have resort to force, it must at his peril 
be such as is not from its character hurtful to the 
opposite belligerent, or inconsistent with a peace- 
able compliance on his part with all his neutral du- 
ties. And, surely, there is nothing in the case of 
the Catharina Elizabeth which says otherwise. 

Another case in the same collection (vol. 3, p. 
278. The Despatch) tells us that if a neutral mas- 
ter endeavours to rescue or recover by force the 
captured property, it shall be condemned, because 
the captor is not bound as against a neutral to 
keep military possession of the thing captured, 
or justified in holding the neutral master and 
crew as prisoners. On the contrary, he is to rely 
upon the duty of the neutral to submit, and hope 
for restitution and compensation from a courl of 
prize; and if this duty be violated by the neutral 
master and crew, confiscation is the result. This 
is explanatory of the judgment in the case of the 
Catharina Elizabeth, and is there used by Sir 
William Scott for that purpose. It shows, as the 
facts of the case also show, that the Court intend- 
ed to confine its decision in the Catharina Eliza- 
beth to the case of an enemy master already cap- 
tured, for whom, as he is in the custody of the 
captor (whose business it is, not to trust, but to 
guard and keep him) the neutral shipper is no 
longer answerable. That the enemy master ceases 
the moment he becomes a prisoner, a^d his vessel 



[ 514 ] 

prize, to be for any purpose, the agent, or in any 
sense the associate of the neutral owner of the 
cargo, and that their connexion is utterly dissolved 
by the seizure, is perfectly clear. It would, there- 
fore, be monstrous to fasten upon the neutral own- 
er of the goods a continuing suretyship for the 
peaceful conduct of the enemy master, after he 
has passed into the state of a prisoner of war. 

But in the consideration of the case of the Ca- 
tharina Elizabeth^ it must in an especial manner 
be borne in mind, that the French vessel was not 
armed at all, and of course not by or for the own- 
er of the cargo ; that she did not resist visita- 
tion, search, or seizure ; that the single circum- 
stance upon which condemnation of the American 
cargo was urged, was some hostile attempt of the 
enemy master after capture consummated — 
which attempt was really and constructively his 
own pevfional act, not procured, or facilitated, or 
influenced, directly or indirectly, remotely or im- 
mediately, by the owner of the cargo, to whom in 
law he had become a stranger. Who is it that can 
persuade himself that there is any resemblance be- 
tween that case and the present, or that, if in that 
ease there was supposed to be an arguable reason 
(if I may be allowed that expression) for visiting 
upon the neutral shipper the hostile conduct of the 
enemy master, the same tribunal would in our case 
have hesitated to condemn ? 

Observe the contrast between the two cases. 

In our case, at the epoch of the resistance, the 



[ 515 ] 

relation was subsisting in its full extent between 
him who made that resistance, and him who pro- 
vides the means without providing any check upon 
the use of those means ; in the other case, it was 
extinguished. In our case, the force employed 
was the original force, hired by the owner of the 
cargo, and left by him to the direction of a hos- 
tile agent, who used it, as he could not but be 
sure he would, hostilely ; — in the other cnse, there 
was no original force; and that which was used 
was the personal force of the enemy master, and 
not that of the vessel. In our case, the force was 
exerted in direct opposition to the neutral's obli- 
gation of submission with reference to the cargo ; 
and in the other, the neutral had already submit- 
ted, and his goods were in the quiet possession of 
the captors. In our case, a general capacity, le- 
gal and actual, of annoyance, as well as of resist- 
ance, had been given, by or for the neutral, to the 
vessel as a belligerent vessel, (a capacity which 
she preserved during her voyage,) for which alone, 
independently of resistance in fact, the neutral is, 
as I confidently contend, liable to the penalty of 
confiscation ; in the other, the vessel was an ordi- 
nary, unarmed commercial vehicle, which the neu- 
tral might hire and employ with perfect innocence 

and safety. 

* * * * * * * 

The little strength with which I set out is at 
last exhausted, and I must hasten to a conclusion. 
I commit to you, therefore, without further discus- 
sion, the cause of my clients, identified with the 



L 516 J 

rights of the American people, and with those 
w .olesoiTie rules which give to public law simpli- 
city and system, and tend to the quiet of the 
world. 

We are now, thank God, once more at peace. 
Our belligerent rights may therefore sleep for a 
season. iMay their repose be long and profound ! 
But the time must arrive when the interests and 
honour of this gfreat nation will command them to 
awake, and when it does arrive, I feel undoubting 
confidence that they will rise from their slumber 
in the fulness of their strength and majesty, un- 
enfeebled and unimpaired by the judgment of this 
high Court. 

The skill and valour of our infant navy, which 
has illuminated every sea, and dazzled the master 
states of Europe by the splendour of its triumphs, 
have given us a pledge, which I trust will continue 
to be dear to every American heart, and influence 
the future course of our policy, that the ocean 
is destined to acknowledge the youthful dominion 
of the West. I am not likely to live to see it, 
and, therefore, the more do I seize upon the en- 
joyment presented by the glorious anticipation — 
That this dominion, when God shall suffer us to 
wrest it from those who have abused it, will be ex- 
ercised with such justice and moderation as will 
put to shame the maritime tyranny of recent times, 
and fix upon our power the affections of mankind, 
it is the duty of us all to hope ; but it is equally 
our duty to hope that we shall not be so inordi- 
nately just to others as to be unjust to ourselves. 



[517 ] 



N«- V. 

3PEECH IN THE HOUSE OF REPRESENTATIVES ON THE 
TREATY-MAKING POWER. 



[In the debate upon the bill to carry into effect 
the British convention of 1815, Mr. Pinkney said,] 
he intended yesterday, if the state of his health 
had permitted, to have trespassed on the House 
with a short sketch of the grounds upon which 
he disapproved of the bill. What I could not do 
then, [said he,] I am about to endeavour now, 
under the pressure, nevertheless, of continuing 
indisposition, as well as under the influence of a 
natural reluctance thus to manifest an apparently 
ambitious and improvident hurry to lay aside the 
character of a listener to the wisdom of others, 
by which I could not fail to profit, for that of an 
expounder of my own humble notions, which are 
not likely to be profitable to any body. It is, in- 
deed, but too probable that I should best have 
consulted both delicacy and discretion, if I had 
forborne this precipitate attempt to launch my 
little bark upon what an honourable member has 
aptly termed ' the torrent of debate' which this 
bill has produced. I am conscious that it may 

66 



[ 518 ] 

with singular propriety be said of me, that I am 
noves hospcs here ; that I have scarcely begun to 
acquire a clomicil among those whom 1 am under- 
taking to address ; and that recently transplanted 
hither tVom courts of judicature, 1 ought for a sea- 
son to look upon myself as a sort of exotic, which 
time has not sufficiently familiarized with the soil 
to which it has been removed, to enable it to put 
forth either fruit or flower. However all this may 
be, it is now too late to be silent. I proceed, 
therefore, to entreat your indulgent attention to 
the few words with which 1 have to trouble you 
upon the subject under deliberation. 

That subject has already been treated with an 
admirable force and perspicuity on all sides of 
the House. The strong power of argument has 
drawn aside, as it ought to do, the veil which is 
supposed to belong to it, and which some of us 
seem unwilling to disturb ; and the stronger pow- 
er of genius, from a higher region than that of 
argument, has thrown upon it all the light with 
which it is the prerogative of genius to invest 
and illustrate every thing. It is fit that it should 
be so ; for the subject is worthy by its dignity and 
importance to employ in the discussion of it all 
the powers of the mind, and all the eloquence 
by which I have already felt that this assembly is 
distinguished. The subject is the fundamental 
law. We owe it to the people to labour with sin- 
cerity and diligence, to ascertain the true con- 
struction of that law, which is but a record of 



[ 519 ] 

their will. We owe it to the obligations of the 
oath which has recently been imprint(;d upon our 
consciences, as well as to the people, to be obe- 
dient to that will when we hav e succeeded in as- 
certaining it. I shall give you my opinion upon 
this matter, with the utmost deference for the 
judgment of others ; but at the same time with 
that honest and unreserved freedom which be- 
comes this place, and is suited to my habits. 

Before we can be in a situation to decide 
whether this bill ought to pass, we must know pre- 
cisely what it is ; what it is not is obvious. It is 
not a bill which is auxiliary to the treaty. It does 
not deal with details which the treaty does not 
bear in its own bosom. It contains no subsidiary 
enactments, no dependent provisions, flowing as 
corollaries from the treaty. It is not to raise 
money, or to make appropriations, or to do any 
thing else beyond or out of the treaty. It acts 
simply as the echo of the treaty. 

higeminat voces, auditaque verba reportat. 
It may properly be called the twin brother of the 
treaty; its duplicate, its reflected image, for it re- 
enacts with a timid fidelity, somewhat inconsis- 
tent with the boldness of its pretensions, all that 
the treaty stipulates, and having performed that 
work of supererogation, stops. It once attempt- 
ed something more, indeed ; but that surplus has 
been expunged from it as a desperate intruder, as 
something which might violate, by a misinterpre- 
tation of the treaty, that very public faith which we 



[ 520 ] 

are now prepared to say the treaty has never plight" 
ed in any the smallest degree. In a word, the bill is 
Si facsimile of the treaty in all its clauses. 

I am warranted in concluding, then, that if it 
be any thing but an empty form of words, it is a 
confirmation, or ratification of the treaty ; or, to 
speak with a more guarded accuracy, is an act to 
which only (if passed into law) the treaty can 
owe its being. If it does not spring from the 
pruritas leges ferendi, by which this body can 
never be afflicted, I am warranted in saying, that 
it springs from an hypothesis (which may afflict 
us with a worse disease) that no treaty of com- 
merce can be made by any power in tlie state but 
Congress. It stands upon that postulate, or it is 
a mere bubble, which might be suffered to float 
through the forms of legislation, and then to burst 
without consequence or notice. 

That this postulate is utterly irreconcileable 
with the claims and port with which this conven- 
tion comes before you, it is impossible to deny. 
Look at it ! Has it the air or shape of a mere 
pledge that the President will recommend to Con- 
gress the passage of such laws as will produce 
the effect at which it aims ? Does it profess to be 
preliminary, or provisional, or inchoate, or to re- 
ly upon your instrumentality in the consumma- 
tion of it, or to take any notice of you, however 
distant, as actual or evcmtutil parties to it ? No, 
it pretends upon the face of it, and in the solem- 
nities with which it has been accompanied and 



[ 521 ] 

followed, to be a pact with a foreign state, com- 
plete and self-efficient, from the obligation of 
which this government cannot now escape, and 
to the perfection of which no more is necessary 
than has already been done. It contains the 
clause which is found in the treaty of 1794, and 
substantially in every other treaty made by the 
United States under the present constitution, so 
as to become a formula, that, when ratified by the 
President of the United States, by and with the 
advice and consent of the Senate, and by his Bri- 
tannic majesty, and the respective ratifications 
mutually exchanged, it shall be binding and obli- 
gatory on the said states and his majesty. 

It has been ratified in conformity with that 
clause. Its ratifications have been exchanged in 
the established and stipulated mode. It has been 
proclaimed, as other treaties have been proclaimed, 
by the executive government, as an integral portion 
of the law of the land, and our citizens at home and 
abroad, have been admonished to keep and ob- 
serve it accordingly. It has been sent to the 
other contracting party with the last stamp of the 
national faith upon it, after the manner of for- 
mer treaties with the same power, and will have 
/ been received and acted upon by that party as a 
. concluded contract, long before your loitering le- 
gislation can overtake it. I protest, Sir, I am 
somewhat at a loss to^ understand what this con- 
vention has been since its ratifications were ex- 
changed, and what it is now, if our bill be sound 



[ 522 ] 

in its principle. Has it not been, and is it not 
an unintelligible, unbaptized and unbaptizable 
thing, without attributes of any kind, bearing 
the semblance of an executed compact, but in reali- 
ty a hollow fiction ; a thing which no man is led to 
consider even as the germ of a treaty, entitled to 
be cherished in the vineyard of the constitution ; 
a thing which, professing to have done every 
thing that public honour demands, has done 
nothing but practise delusion ? You may ransack 
every. diplomatic nomenclature, and run through 
e\eYf vocabulary, whether of diplomacy or law, 
and you shall not find a word by which you may 
distinguish, if our bill be correct in its hypothesis, 
this ' deed without a name.' A plain man who is 
not used to manage his phrases, may, therefore, 
presume to say that if this convention with Eng- 
land be not a valid treaty, which does not stand 
in need of your assistance, it is an usurpation on 
the part of those who have undertaken to make 
it ; that if it be not an act within the treaty- 
making capacity, confided to the President and 
Senate, it is an encroachment on the legislative 
rights of Congress. 

I am one of those who view the bill upon the 
table, as declaring that it is not within that capa- 
city, as looking down upon the convention as the 
still-born progeny of arrogated power, as offering 
to it the paternity of Congress, and affecting by 
that paternity to give to it life and strength ; and 
as I think that the convention does not stand in 



[ 523 ] 

need of any such filiation, to make it either 
s'trong or legitimate, that it is already all that it 
can become, and that useless legislation upon 
such a subject is vicious legislation, I shall vote 
against the bill. The correctness of these opi- 
nions is what [ propose to establish. 

I lay it down as an incontrovertible truth, that 
the Gonsitutiun has assumed (and, indeed, how 
could it do otherwise ?) that the government of the 
United States might and would have occasion, 
like the other governments of the civilized world, 
to enter into treaties with foreign powers, ttpon 
the various subjects involved in their mutual re- 
lations ; and further, that it might be, and was 
proper to designate the department of the govern- 
ment in which the capacity to make such treaties 
should be lodged. It has said, accordingly, that 
the President, with the concurrence of the Senate, 
shall possess this portion of the national sove- 
reignty. It has, furthermore, given to the same 
magistrate, with the same coacurrence, the exclu- 
sive creation and control of the whole machinery 
of diplomacy. He only, with the approbation of 
the Senate, can appoint a negociator, or take any 
step towards negociation. The constitution does 
not, in any part of it, even intimate that any other 
department shall possess either a constant or an 
occasional right to interpose in the preparation of 
any treaty, or in the final perfection of it. The 
President and Senate are explicitly pointed out as 
the sole actors in that sort of transaction. The 



[ 524 ] 

prescribed concurrence of the Senate, and that 
too by -d majority greater than the ordinary legis- 
lative majority, phiinly excludes the necessity of 
conofresisional concurrence. If the consent of 
Congress to any treaty had been intended, the 
co;istitution would not have been guilty of the ab- 
surdity of first pulling a treaty for ratification to 
the President and Senate exclusively, and again 
to the same President and Senate as portions of 
the legislature. It would have submitted the whole 
matter at once to Congress, and the more espe- 
cially, as the ratification of a treaty by the Senate, 
as a branch of the legislature, may be by a smaller 
number than a ratification of it by the same body, 
as a branch of the executive government. If the 
ratification of any treaty by the President, with 
the advice and consent of the Senate, must be 
followed by a legislative ratification, it is a mere 
nonentity. It is good for all purposes, or for none. 
And if it be nothing in effect, it is a mockery by 
which nobody would be bound. The President 
and Senate would not themselves be bound by it 
— and the ratification would at last depend, not 
upon the will of the President and two-thirds of 
the Senate, but upon the will of a bare majority 
of the two branches of the legislature, subject to 
the qualified legislative control of the President. 
Upon the power of the President and Senate, 
therefore, there can be no doubt. The only ques- 
tion is as to the extent of it, or in other words, 
as to the subject upon which it may be exerted. 



[ 525 ] 

The effect of the power, when exerted within its 
lawful sphere, is beyond the reach of controversy. 
The constitution has declared, that whatsoever 
amounts to a treaty, made under the authority of 
the United States, shall imrnediately be supreme 
law. It has contradistinguished a treaty as law 
from an act of Congress as law. It has erected 
treaties, so contradistinguished, into a binding 
judicial rule. It has given them to our courts of 
justice, in defining their jurisdiction, as a portion 
of the lex terrce, which they are to interpret and en- 
force. In a word, it has communicated to them, 
if ratified by the department which it has specially 
provided for the making of them, th« rank of 
law, or it has spoken without meaning. And if 
it has elevated them to that rank, it is idle to at- 
tempt to raise them to it by ordinary legislation. 
Upon the extent of the power, or the subjects 
upon which it may act, there is as little room for 
controversy. The power is to make treaties* 
The word treaties is nomen ^eneralissimuni, and 
will comprehend commercial treaties, unless there 
be a limit upon it by which they are excluded. It 
is the appellative, which will take in the whole 
species, if there be nothing to narrow its scope. 
There is no suchlimii. There is not a syllable in 
the context of the clause to restrict tne natural 
import of its phraseology. The power is left to 
the force of the generic term, and is, therefore, 
as wide as a treaty-making power can be. It em- 
braces all the varieties of treaties which it could 

67 



[ 526 J 

be supposed this government could find it neces- 
sary or proper to make, or it embraces none. It 
covers the whole treaty-making ground which 
this government could be expected to occupy, or 
not an inch of it. 

It is a just presumption, that it was designed 
to be co-extensive with all the exigencies of our 
affairs. Usage sanctions that presumption — ex- 
pediency does the same. The omission of any 
exception to the power, the omission of the de- 
signation of a mode by which a treaty, not intend- 
ed to be included within it, might otherwise be 
made, confirms it. That a commercial treaty 
was, above all others, in the contemplation of the 
constitution, is manifest- The immemorial prac- 
tice of Europe, and particularly of the nation 
from which we emigrated, the consonance of en- 
lightened theory to that practice, prove it. It 
may be said, indeed, that at the epoch of the 
birth of our constitution, the necessity for a pow- 
er to make commercial treaties was scarcely visi- 
ble, for that our trade was then in its infancy. It 
was so ; but it was the infancy of another Hercu- 
les, promising, not indeed a victory over the lion 
of Nemsea, or the boar of Erymanthus, but the 
peaceful conquest of every sea which could be 
subjected to the dominion of commercial enter- 
prize. It was then as apparent as it is now, that 
the destinies of this great nation were irrevocably 
commercial ; that the ocean would be whitened by 
our sails, and the ultima Thule of the world com- 
pelled to witness the more than Phoenician spirit 



[ 527 ] 

and intelligence of our merchants. With this 
glorious anticipation dawning upon them — with 
this resplendent Aurora gilding the prospect of 
the future ; nay, with the risen orb of trade illu- 
minating the vast horizon of American greatness, 
it cannot be supposed that the framers of the 
constitution did not look to the time when we 
should be called upon to make commercial con- 
ventions. It needs not the aid of the imagina- 
tion to reject this disparaging and monstrous sup- 
position. Dullness itself, throwing aside the le- 
thargy of its character, and rising for a passing 
moment to the rapture of enthusiasm, will dis- 
claim it with indignation. 

It is said, however, that the constitution has 
given to Congress the power to regulate com- 
merce with foreign nations ; and that, since it 
would be inconsistent with that power, that the 
President, with the consent of the Senate, should 
do the same thing, it follows, that this power of 
Congress is an exception out of the treaty- 
making power. Never were premises, as it ap- 
pears to my understanding, less suited to the 
conclusion. The power of Congress to regulate 
our foreign trade, is a power of municipal legis- 
lation, and was designed to operate as far as, up- 
on such a subject, municipal legislation can 
reach. Without such a power, the government 
would be wholly inadequate to the ends for which 
it was instituted. A power to regulate commerce 
by treaty alone, would touch only a portion of the 



[ 528 ] 

)ject. A wider and more general power was 
therefore indispensible, and it was properly de- 
volved on Congress, as the legislature of the 
Union. 

On the other hand, a power of mere munici- 
pal legislation, acting upon views exclusively our 
own, having no reference to a reciprocation of 
advantages by arrangements with a foreign state, 
would also fall short of the ends of government 
in a country of which the commercial relations are 
complex and extensive, and liable to be embar- 
rassed by conflicts between its own interests and 
those of other nations. That the power of Con- 
gress is simply legislative in the strictest sense, 
and calculated for ordinary domestic regulation 
only, is plain from the language in which it is 
communicated. There is nothing in that language 
which intlicates regulation, by compact or compro- 
mise, nothing which points to the co-operation of 
a foreign power, nothing which designates a trea- 
ty-making faculty. It is not connected with any 
of the necessary accompaniments of that facullyj 
it is not furnished with any of those means, with- 
out which it is impossible to make the smallest 
progress towards a treaty. 

It is self-evident, that a capacity to regulate 
commerce by treaty, was intended by the consti- 
tution to be lodged somewhere. It is just as evi- 
dent, that the legislative capacity of Congress does 
not amount to it ; and cannot be exerted to pro- 
duce a treaty. It can produce only a statute, with 
which a foreign state cannot be made to concur. 



[ 529 ] 

and which will not yiehl to any nriodifications which 
a foreign state may desire to impress upon it for 
suitable equivalents. There is no way in M^hioh 
Congress, as such, can mould its laws into trea- 
ties, if it respects the constitution. It may legis- 
late and counter- legislate ; but it must for ever be 
beyond its capacity to combine in a law, emana- 
ting from its separate domestic authority, its own 
views with those of other governments, and to 
produce a harmonious reconciliation of those jar- 
ring purposes and discordant elements which it is 
the business of negociation to adjust. 

I reason thus, then, upon this part of the sub- 
kject. It is clear that the power of Congress, as 
to foreign commerce, is only what it professes to be 
in the constitution, a legislative power, to be ex- 
erted municipally without consultation or agree- 
ment with those with whom we have an intercourse 
of trade ; it is undeniable that the constitution 
meant to provide for the exercise of another pow- 
er relatively to commerce, which should exert it- 
self in concert with the analogous power in other 
countries, and should bring about its results, not 
by statute enacted by itself, but by an internation- 
al compact called a treaty ; that it is manifest, that 
this other power is vested by the constitution in 
the President and Senate, the only department of 
the government which it authorises to make any 
treaty, and which it enables to make all treaties ; 
that if it be so vested, its regular exercise must re- 
sult in that which, as far as it reaches, is law in itself, 



[ 530 ] 

and consequently repeals such municipal regula- 
tions as stand in its way, since it is expressly de- 
clared by the constitution that treaties regularly 
made shall have, as they ought to have, the force 
of law. In all this, I perceive nothing to perplex 
or alarm us. It exhibits a well dio^ested and uni- 
form plan of government, worthy of the excellent 
men by whom it was formed. The ordinary 
power to regulate commerce by statutory enact- 
ments, could only be devolved upon Congress, 
possessing all the other legislative powers of the 
government. The extraordinary power to regu- 
late it by treaty, could not be devolved upon Con- 
gress, because from its composition, and the ab- 
sence of ail those authorities and functions which 
are essential to the activity and effect of a treaty- 
making power, it was not calculated to be the de- 
pository of it. It was wise and consistent to place 
the extraordinary power to regulate commerce by 
treaty, where the residue of the treaty-making 
power was placed, where only the means of nego- 
ciation could be found, and the skilful and bene- 
ficial use of them could reasonably be expected. 
That Congress legislates upon commerce, sub- 
ject to the treaty-making power, is a position per- 
fectly intelligible ; but the understanding is in 
some degree confounded by the other proposition, 
that the legislative power of Congress is an ex- 
ception out of the treaty-making power. It intro- 
duces into the constitution a strange anomaly — a 
commercial state, with a written constitution, and 



^' [ 531 ] 

no power in it to res^ulate its trade,'in conjunction 
with other states, in the universal mode of conven- 
tion. It will be in vain to urge, that this anomaly 
is merely imaginary ; for that the President and 
Senate may make a treaty of commerce for the 
consideration of Congress. The answer is, that 
the treaties which the President and Senate are 
entitled to make, are such, as when made, become 
law ; that it is no part of their functions simply 
to initiate treaties, but conclusively to make them ; 
and that where they have no power to make them, 
there is no provision in the constitution, how or 
by whom they shall be made. 

That there is nothing new in the idea of a se- 
paration of the legislative and conventional pow- 
ers upon commercial subjects, and of the neces- 
sary control of the former by the latter, is known 
to all who are acquainted with the constitution of 
England. The Parliament of that country enacts 
the statutes by which its trade is regulated muni- 
cipally. The Crown modifies them by a treaty. 
It has been imagined, indeed, that the Parliament 
is in the practice of confirming such treaties ; but 
the fact is undoubtedly otherwise. Commercial 
treaties are laid before Parliament, because the 
king's ministers are responsible for their advice 
in the making of them, and because the vast range 
and complication of the English laws of trade 
and revenue, render legislation unavoidable, not 
for the ratification, but the execution of their com- 
mercial treaties. 



[ 532 ] 

It is suggested again, that the treaty-making 
power (unless we are tenants in common of it 
with the President and Senate, to the extent at 
least of our legislative rights) is a pestilent monster, 
pregnant with all sorts of disasters ! — It teems 
with ' Gorgons, and Hydras, and Chimeras dire !' 
At any rate, 1 may take for granted that the case 
before us does not justify this array of metaphor 
and fable ; since we are all agreed that the con- 
vention with England is not only harmless but 
salutary. To put this particular case, however, 
out of the argument, what have we to do with 
considerations like these ? are we here to form, or 
to submit to the constitution as it has been given to 
us for a rule by those who are our masters ? Can 
we take upon ourselves the office of political 
casuists, and because we think that a power ought 
to be less than it is, compel it to shrink to our 
standard ? Are we to bow with reverence before 
the national will as the constitution displays it, 
or to fashion it to our own, to quarrel with that 
charter, without which we ourselves are nothing ; 
or to take it as a guide which we cannot desert 
with innocence or safety ? But why is the treaty- 
making power lodged, as I contend it is, in the 
President and iSenate, likely to disaster us, as we 
are required to apprehend it will ? Sufficient 
checks hive not, as it seems, been provided, either 
by the constitution or the nature of things, to pre- 
vent the abuse of it. It is in the House of Re- 
presentatives alone, that the amulet, which bids 



[ 533 ] 

defiance to the approaches of political disease, 
or cures it when it has commenced, can in all vi- 
cissitudes be found. I hold that the checks are 
sufficient, without the charm of our legislative 
agency, for all those occasions which wisdom is 
bound to foresee and to guard against ; and that 
as to the rest (the eccentricities and portents which 
no ordinary checks can deal with) the occasions 
must provide for themselves. 

It is natural, here, to ask of gentlemen, what 
security they would have ? They cannot * take a 
bond of Fate ;' and they have every pledge which 
is short of it. Have they not, as respects the 
President, all the security upon which they rely 
from day to day for the discreet and upright dis- 
charge of the whole of his other duties, many 
and various as they are ? What security have they 
that he will not appoint to office the refuse of the 
world ; that he will not pollute the sanctuary of 
justice by calling vagabonds to its holy ministry, 
instead of adorning it with men like those who 
now give to the bench more dignity than they re- 
ceive from it : that he will not enter into a treaty 
of amnesty with every conspirator against law and 
order, and pardon culprits from mere enmity to 
virtue ? The security for all this, and infinitely 
more, is found in the constitution and in the order 
of nature ; and we are all satisfied with it. One 
should think that the same security, which thus 
far time has not discredited, might be sufficient 

68 



[ 534 ] 
to tranquillize us upon the score of the power 
which we are now considering. 

We talk of ourselves as if we only were the re- 
presentatives of the people. But the first magis- 
trate of this country is also the representative of 
the people, the creature of their sovereignty, the 
administrator of their power, their steward and 
servant, as you are — he comes from the people, is 
lifted by them into place and authority, and after a 
short season returns to them for censure or ap- 
plause. There is no analogy between such a ma- 
gistrate and the hereditary monarchs of Kurope. 
He is not born to the inheritance of office ; he 
cannot even be elected until he has reached an 
age at which he must pass for what he is ; until his 
habits have been formed, his integrity tried, his 
capacity ascertained, his character discussed and 
probed for a series of years, by a press, which 
knows none of the restraints of European policy. 
He acts, as you do, in the full view of his con- 
stituents, and under the consciousness that on ac- 
count of the singleness of his station, all eyes are 
upon him. He knows, too, as well as you can 
know, the temper and intelligence of those for 
whom he acts, and to whom he is amenable. He 
cannot hope that they will be blind to the vices of 
his alministration on subjects of high concern- 
ment and vital interest ; and in proportion as he 
acts upon his own responsibility, unrelieved and 
undiluted by the infusion of ours, is the danger 



[ 535 ] 

of ill-advised conduct likely to be present to his 
mind. 

Of all the powers which have been entrusted to 
him, there is none to which the temptations to 
abuse belong so little as to the treaty-making 
power in all its branches ; none which can boast 
such mighty safeguards in the feelings, and views, 
and passions which even a misanthrope could at- 
tribute to the foremost citizen of this republic — 
He can have no motive to palsy by a commercial 
or any other treaty the prosperity of his country. 
Setting apart the restraints of honour and patriot- 
ism, which are characteristic of public men in a 
nation habitually free, could he do so without 
subjecting himself as a member of the community 
(to say nothing of his immediate connections) to 
the evils of his own work ? A commercial treaty, 
too, is always a conspicuous measure. It speaks 
for itself. It cannot take the garb of hypocrisy, 
and shelter itself from the scrutiny of a vigilant 
and well instructed population. If it be bad, it 
will be condemned, and if dishonestly made, be 
execrated. The pride of country, moreover, which 
animates even the lowest of mankind, is here a 
peculiar pledge for the provident and wholesome 
exercise of power. There is not a consideration 
by which a cord in the human breast can be made 
to vibrate that is not in this case the ally of duty. 
Every hope either lofty or humble that springs 
forward to the future ; even the vanity which looks 
not beyond the moment ; the dread of shame and 



[ 536 ] 

the love of glory ; the instinct of ambition ; the 
domestic affections ; the cold ponderings of pru- 
dence ; and the ardent instigations of sentiment 
and passion, are all on the side of duty. It is in 
the exercise of this power that responsibility to 
public opinion, which even despotism feels and 
truckles to, is of gigantic force. If it were pos- 
sible, as I am sure it is not, that an American citi- 
zen, raised, upon ;he credit of a long life of virtue, 
to a station so full of honour, could feel a dispo- 
sition to mingle the little interests of a perverted 
ambition with the great concerns of his country, 
as embraced by a commercial treaty, and to sacri- 
fice her happiness and power by the stipulations 
of that treaty, to flatter or aggrandize a foreign 
state, he would still be saved from the perdition 
of such a course, not only by constitutional checks, 
but by the irresistible efficacy of responsibility to 
public opinion, in a nation whose public opinion 
wears no mask, and will not be silenced. He 
would remember that his political career is but 
the thing of an hour, and tlj^t when it has passed 
he must descend to the private station from which 
he rose, the object either of love and veneration, 
or of scorn and horror. If we cast a glance at 
England, we shall not fail to see the influence of 
public opinion upon an hereditary king, an heredi- 
tary nobility, and a House of Commons elected 
in a great degree by rotten boroughs and over- 
flowing with placemen. And if this influence is 
potent there against all the efforts of independent 



[ 5S7 ] 

power and wide spread corruption, it must in this 
countiy be omnipotent. 

But the treaty-making power of the President 
is further checked by the necessity of the concur- 
rence of two-thirds of the Senate, consisting of 
men selected by the legislatures of the States, 
themselves elected by the people. They too must 
have passed through the probation of time before 
they can be chosen, and must bring with them 
every title to confidence. The duration of their 
office is that of a few years ; their numbers are 
considerable ; their constitutional responsibility as 
great as it can be ; and their moral responsibility 
beyond all calculation. 

The power of impeachment has been mention- 
ed as a check upon the President in the exercise 
of the treaty-making capacity. I rely upon it less 
than upon others, of, as I think, a better class ; but 
as the constitution places some reliance upon it, 
so do I. It has been said, that impeachment has 
been tried and found wanting. Two impeachments 
have failed, as I have understood, (that of a judge 
was one) — but they may have failed for reasons 
consistent with the general efficacy of such a pro- 
ceeding. I know nothing of their merits, but I 
am justified in supposing that the evidence was 
defective, or that the parties were innocent as they 
were pronounced to be : — Of this, however, I feel 
assured, that if it should ever happen that the Pre- 
sident is found to deserve the punishment which 
impeachment seeks to inffict, (even for making a 



[ 538 ] 

treaty to which the judi^es have become parties,) 
and this body should accuse him in a constitution- 
al way, he will not easily escape. But, be that 
as it may, I ask if it is nothing that you have 
power to arraign him as a culprit ? Is it nothing 
that you can bring him to the bar, expose his mis- 
conduct to the world, and bring down the indig- 
nation of the public upon him and those who 
dare to acquit him ? 

If there be any power explicitly granted by the 
constitution to Congress, it is that of declaring 
war ; and if there be any exercise of human le- 
gislation more solemn and important than ano- 
ther, it is a declaration of war. For expansion it 
is the largest, for effect the most awful of all the 
enactments to which Congress is competent ; and 
it always is, or ought to be, preceded by grave 
and anxious deliberation. This power, too, is 
connected with, or virtually involves, others of 
high import and efficacy ; among which may be 
ranked the power of granting letters of marque 
and reprisal, of regulating captures, of prohibit- 
ing intercourse with, or the acceptance of protec- 
tions or licenses from, the enemy. Yet farther ; 
a power to declare war implies, with peculiar em- 
phasis, a negative upon all power, in any other 
branch of the government, inconsistent with the 
full and continuing effect of it. A power to make 
peace in any other branch of the government, is 
utterly inconsistent with that full and continuing 
effect. It may even prevent it from having any 



[ 539 ] 

effect at all ; since peace may follow almost imme- 
diately (although it rarely does so follow) the 
commencement of a war. If, therefore, it be un- 
deniable that the President, with the advice and 
consent of the Senate, has power to make a trea- 
ty of peace, available ipso jure, it is undeniable 
that he has power to repeal, by the mere opera- 
tion of such a treaty, the highest acts of congres- 
sional legislation. And it will not be questioned 
thatithis repealing power is, from the eminent na- 
ture of the war-declaring power, less fit to be made 
out by inference than the power of modifying by 
treaty the laws which regulate our foreign trade. 
Now the President, with the advice and consent 
of the Senate, has an incontestible and uncontest- 
ed right to make a treaty of peace, of absolute 
inherent efficacy, and thpt too in virtue of the 
very same general provision in the constitution 
which the refinements of political speculation, 
rather than any known rules of construction, have 
led some of us to suppose excludes a treaty of 
commerce. 

By what process of reasoning will you be able 
to extract from the wide field of that general pro- 
vision the obnoxious case of a commercial treaty, 
without forcing along with it the case of a treaty 
of peace, and along with that again the case of 
every possible treaty ? Will you rest your distinc- 
tion upon the favourite idea that a treaty cannot 
repeal laws competently enacted, or, as it is 
sometimes expressed, cannot trench upon the le- 



[ 540 ] 

fiislative risfhts of Concrress ? Such a distinction 
not only seems to be reproached by all the the.o- 
ries, numerous as they are, to which this bill has 
given birth, but is against notorious fact and re- 
cent experience. We have lately witnessed the 
operation in this respect of a treaty of peace, and 
could not fail to draw from it this lesson ; that no 
sooner does the President exert, with the consent 
of the Senate, his power to make such a treaty, 
than your war-denouncing law, your act for letters 
of marque, your prohibitory statutes as to inter- 
course and licenses, and all the other concomitant 
and dependent statutes, so far as they affect the na- 
tional relations with a foreign enemy, pass away 
as a dream, and in a moment are ' with years be- 
yond the flood.' Your auxiliary agency was not 
required in the production of this effect ; and I 
have not heard that you even tendered it. You 
saw your laws departing as it were from the sta- 
tute books, expelled from the strong hold of su- 
premacy by the single force of a treaty of peace ; 
and you did not attempt to stay them ; you did 
not bid them linger until you should bid them go ; 
you neither put your shoulders to the wheel of ex- 
pulsion nor made an effort to retard it. In a 
word, you did nothing. You suffered them to 
flee as a shadow, and you know that they were 
reduced to shadow, not by the necromancy of 
usurpation, but by the energy of constitutional 
power. Yet, you had every reason for interfer- 
ence then which you can have now. The power 



[ Ml ] 

to make a treaty of peace stands upon the same 
constitutional footing with the power to make a 
co;nmercial treaty. It is given by the same words. 
It is exerted in the same manner. It produces the 
same conflict with municipal legislation. The in- 
genuity of man cannot urge a consideration, 
whether upon the letter or the spirit of the consti- 
tution, against the existence of a power in the 
President and Senate to make a valid commer- 
cial treaty, which will not, if it be correct and 
sound, drive us to the negation of the pow- 
er exercised by the President and Senate, with 
universal approbation, to make a valid treaty of 
peace. 

Nay, the whole treaty-making power will be 
blotted from the constitution, and a new one, 
alien to its theory and practice, be made to sup- 
plant it, if sanction and scope be given to the 
principles of this bill. This bill may indeed be 
considered as the first of many assaults, not now 
intended perhaps, but not therefore the less likely 
to happen, by which the treaty-making power, as 
created and lodged by the constitution, will be 
pushed from its place, and compelled to abide 
with the power of ordinary legislation. The ex- 
ample of this bill is beyond its ostensible limits. 
The pernicious principle, of which it is at once 
the child and the apostle, must work onward and 
to the right and the left until it has exhausted it- 
self; and it never can exhaust itself until it has 
gathered into the vortex of the legislative powers 

69 



[ 542 ] 

of Congress the whole treaty-making capacity of 
the government. For if, notwithstanding the di- 
rectness and precision with which the constitution 
has marked out the department of the govern- 
ment by which it wills that treaties shall be made, 
and has declared that treaties so m;ide shall have 
the force and dignity of law, the House of Re- 
presentatives can insist upon some participation 
in that high faculty, upon tlie simple suggestion 
that they are sharers in legislative power upon 
the subjects embraced by any given treaty, what 
remains to be done, for the transfer to Congress 
of the entire treaty-making faculty, as it appears 
in the constitution, but to show that Congress 
have legislative power direct or indirect upon 
every matter which a treaty can touch ? And 
what are the matters within the practicable range 
of a treaty, which your laws cannot either mould, 
or qualify, or influence ? Imagination has been 
tasked for example, by which this question might 
be answered. It is admitted that they must be 
few, and we have been told, as I think, of no 
more than one. It is the case of contraband of 
war. This case has, it seems, the double recom- 
mendation of being what is called an interna- 
tional case, and a case beyond the utmost grasp 
of congressional legislation. I remark upon it, 
that it is no more an international case than any 
matter of collision incident to the trade of two 
nations with each other. I remark farther, that 
a treaty upon the point of contraband of war may 



[ 543 ] 

interfere, as well as any other treaty, with an act of 
Congress. A law encouraging, by a bounty or 
otherwise, the exportation of certain commodi- 
ties, would be counteracted by an insertion in- 
to the list of contraband of war, in a treaty with 
England or France, any one of those commodi- 
ties. The treaty would look one way, the law 
another. And various modes might readily be 
suggested in which Congress might so legislate as 
to lay the foundation of repugnancy between its 
laws and the treaties of the President and Senate 
with reference to contraband. I deceive myself 
greatly if a subject can be named upon which a 
like repugnancy might not occur. But even if it 
should be practicable to furnish, after laborious 
inquiry and meditation, a meagre and scanty in- 
ventory of some half dozen topics, to which do- 
mestic legislation cannot be made to extend, will 
it be pretended that such was the insignifi(;ant and 
narrow domain designed by the constitution for 
the treaty-making power ? It would appear that 
there is with some gentlemen a willingness to dis- 
tinguish between the legislative power expressly 
granted to Congress and that which is merely im- 
plied, and to admit that a treaty may control 
the results of the latter. I reply to those gen- 
tlemen that one legislative power is exactly equi- 
valent to ajiother, and that, moreover, the whole 
legislative power of Congress may justly be said 
to be expressly granted by the constitution, al- 
thoufifh the constitution does not enumerate every 



L 544 ] 

variety of its exercise, or indicate all the ramili- 
cations into which it may diverge to suit the exi- 
gencies of the times. I reply, besides, that even 
with the qualification of this vague distinction, 
whatever may be its value or effect, the principle 
of the bill leaves no adequate sphere for the trea- 
ty-making power. I reply, finally, that the ac- 
knowledged operation of a treaty of peace in re- 
pealing laws of singular strength and unbending 
character, enacted in virtue of powers communi- 
cated in terminis to Congress, gives the distinc- 
tion to the winds. 

And now that I have again adverted to the ex- 
ample of a treaty of peace, let me call upon you 
to^reflect on the answer which that example af- 
fords to all the warnings we have received in this 
debate against the mighty danger of entrusting 
to the only department of the government, which 
the constitution supposes can make a treaty, the 
incidental prerogative of a repealing legislation. 
It is inconsistent, we are desired to believe, with 
the genius of the constitution, and must be fatal 
to all that is dear to freemen, that an Executive 
magistrate and a Senate, who are not immediate- 
ly elected by the people, should possess this autho- 
rity. We hear from one quarter that if it be so, 
the public liberty is already in the grave ; and 
from another, that the public interest and honour 
are upon the verge of it. But do you not perceive 
that this picture of calamity and shame is the mere 
figment of excited fancy, disavowed by the consti- 



[ 545 ] 

lution as hysterical, and erroneous in the case of ^ 
a treaty of peace ? Do you not see that if there 
be any thing in this high coloured peril, it is a 
treaty of peace that must realize it l Can we in 
this view compare with the power to make such a 
treaty, that of making a treaty of commerce ? 
Are we unable to conjecture, while we are thus 
brooding over anticipated evils which can never 
happen, that the lofty character of our country 
(which is but another name for strength and pow- 
er) may be made to droop by a mere treaty of 
peace ; that the national pride may be humbled ; 
the just hopes of the people blasted ; their cou- 
rage tamed and broken ; their prosperity struck 
to the heart ; their foreign rivals encouraged into 
arrogance and tutored into encroachment, by a 
mere treaty of peace ? I confidently trust that, 
as this never has been so, it never will be so ; but 
surely it is just as possible as that a treaty of com- 
merce should ever be made to shackle the free- 
dom of this nation, or check its march to the 
greatness and glory that await it. I know not, 
indeed, how it can seriously be thought that our 
liberties are in hazard from the small witchery of 
a treaty of commerce, and yet in none from the 
potent enchantments by which a treaty of peace 
may strive to enthral them. I am at a loss to 
conceive by what form of words, by what hitherto 
unheard-of stipulations, a commercial treaty is to 
barter away the freedom of United America, or 
of any the smallest portion of it. I cannot figure 



[ 546 ] 

to myself the possibility that such a project can 
ever find its way into the head or heart of any man, 
or set of men, whom this nation may select as the 
depositories of its power ; but I am quite sure that 
an attempt to insert such a project in a commer- 
cial treaty, or in any other treary, or in any other 
mode, could work no other eftect than the destruc- 
tion of those who should venture to be parties to it, 
no matter whether a President, Senate, or a whole 
Congress. Many extreme cases have been put 
for illustration in this debate ; and this is one of 
them ; and I take the occasion which it offers to 
mention, that to argue from extreme cases is sel- 
dom logical, and upon a question of interpreta- 
tion, never so. We can only bring back the 
means of delusion, if we wander into the regions 
of fiction, and explore the wilds of bare possibi- 
lity in search of rules for real life and actual or- 
dinary cases. By arguing from the possible abuse 
of power against the use or existence of it, you 
may and must come to the conclusion, that there 
ought not be, and is not, any government in this 
country, or in the world. Disorganization and 
anarchy are the sole consequences that can be de- 
duced from such reasoning. Who is it that may 
not abuse the power that has been confided to him ? 
May not ine, as well as the other branches of the 
government ? And, if we may, does not the ar- 
gument from extreme cases prove that we ought 
to have no power, and that we have no power? 
And does it not, therefore, after having served 



[ 547 ] 

tor an instant the purposes of this bill, turn short 
upon and condemn its whole theory, which at-' 
tributes to us, not merely the power which is our 
own, but inordinate power, to be gained only by 
wresting it from others ? Our constitutional and 
moral security against the abuses of the power of 
ihe executive government have already been 
explained. I will only add, that a great and ma- 
nifest abuse of the delegated authority to make 
treaties would create no obligation any where. If 
ever it should occur, as T confidently believe it 
never will, the evil must find its corrective in the 
wisdom and firmness, not of this body only, but 
of the whole body of the people co-operating with 
it. It is, after all, in the people, upon whose Atlan- 
tean shoulders our whole republican system re- 
poses, that you must expect that recuperative 
power, that redeeming and regenerating spirit, by 
which the constitution is to be purified and redin- 
tegrated when extravagant abuse has cankered it. 
In addition to the example of a treaty of peace 
which I have just been considering, let me put 
another, of which none of us can question the rea- 
lity. The President may exercise the power of 
pardoning, save only in the case of impeachments. 
The power of pardoning is not communicated by 
words more precise or comprehensive than the 
power to make treaties. But to what does it 
amount? Is not every pardon, j^roAac vice, a re- 
peal of the penal law against which it gives pro- 
tection ? Does it not ride over the law, resist its 



[ 548 ] 

command, and extinguish its effect? Does it not 
even control the combined force of judicature and 
legislation ? Yet, have we ever heard that your le- 
gislative rights were an exception out of the pre- 
rogative of mercy ? Who has ever pretended that 
this faculty cannot, if regularly exerted, wrestle 
with the strongest of your statutes ? I may be 
told, that the pardoning power necessarily im- 
ports a control over the penal code, if it be exer- 
cised in the form of a pardon. I answer, the 
power to make treaties equally imports a power 
to put out of the way such parts of the civil code 
as interfere with its operation, if that power be 
exerted in the form of a treaty. There is no dif- 
ference in their essence. You legislate, in both 
cases, subject to the power. And this instance 
furnishes another answer, as I have already inti- 
mated, to the predictions of abuse, with which, on 
this occasion, it has been endeavoured to appal us. 
The pardoning power is in the President alone. 
He is not even checked by the necessity of Sena- 
torial concurrence. He may by his single Jiat ex- 
tract the sting from your proudest enactments — 
and save from their vengeance a convicted of- 
fender. 

Sir, you have my general notions upon the bill 
before you. They have no claim to novelty, f 
imbibed them from some of the heroes and sages 
who survived the storm of that contest to which 
America was summoned in her cradle. I imbibed 
them from the father of his country. My under- 



[ 549 ] 

standing approved them, with the full concurrence 
of my heart, when I was much younger than 1 am 
now ; and I feel no disposition to discard them 
now that age and feebleness are about to over- 
take me. I could say more — much more — upon 
this high question ; but I want health and strength. 
It is, perhaps, fortunate for the House that 1 do ; as 
it prevents me from fatiguing them as much as I 
fatigue myself 



70 



[ 550 ] 



N°- VI. 

ARGUMENT ON THE RIGHT OF THE STATES TO TAX 
THE NATIONAL BANK. 



After the exordium,* which the reader will find in the First 
Part otthis work, Mr. Pinkney proceeded to inquire whether 
the act of Congress establishing the Bank was repugnant to the 
Constitution. In order to determine this question, he contrasted 
the nature and organization of the old Confederation and the na- 
tional constitution by whicli it had been superseded. The former 
was a mere federative league ; nothing more than a species of 
alliance offensive and defensive between the States, such as 
there had bf*en many examples of in the history of the world. 
It had no power of coercion but by arms. Its fundamental prin- 
ciple was a scheme of legislation for states or communities in 
their political capacities. This was its great and radical vice, 
which the new constitution was intended to reform. This last 
was a project of general discretionary superintendence. It was 
formed upon the reverse of the principle of the Confederacy. It 
carried its agency to the persons of the citizens : it provided for 
direct legislation upon the people, precisely as in the State go- 
vernments. But the change intended to be produced by the new 
constitution consisted much less in the addition of new powers t» 
the Union, than in the invigoration of the original powers. The 
power of regulating commerce was, indeed, a new power. But 
the powers relating to war and peace, fleets and armies, treaties 
and finance, with the other more considerable powers, were all 

* See Part First, p. 161. 



[551 ] 

vested in Congress by the articles of confederation. The propos> 
ed change only substituted a more effectual mode of administer- 
ing them. 

Under the constitution, the powers belonging to the federal 
government, whatever may be their extent, are just as sovereign 
as those of the States. The State governments are not the authors 
and creators of the national constitution. It does not derive its 
powers from them. They are preceding in point of time to the 
national sovereignty, but are postponed to it in point of supre- 
macy by the will of the people. The powers of the national 
government are the great imperial powers by which nations are 
known to one another. It acts upon the people as the State go- 
vernments act upon them. Its powers aie given by the people, as 
those of the State governments are given. The national consti- 
tution was framed in the name of the people, and was ratified by 
the people as the State constitutions were. If the respective pow- 
ers of these two governments interfere, those of the States must 
yield. 

But it is said that the powers of the national government are 
limited in number and extent, and that this want of universality" 
shows that they are not sovereign powers. But the State go- 
vernments are not unlimited in the number, or unrestrained in 
the exercise of their powers. They are limited by the declara- 
tions of rights contained in the State constitutions ; by the nature 
and ends of all government ; and by the restraints upon state 
legislation contained in the constitution of the United States. 

It is said, too, that the powers of the State governments are 
original, and therefore more emphatically sovereign than those 
of the national government. But the State powers are no more 
original than those belonging to the Union. There is no original 
power but in the people, who are the fountain and source of all 
political power. 

I he means of giving efficacy to the sovereign authorities vest- 
ed by the people in the national government, are those adapted 
to the end ; fitted to promote, and having a natural relation and 
connexion with, the objects of that government. The constitu- 
tion by which these authorities and the means of executing them 
are given, and the laws made in pursuance of it, are declared to 



[ 552 ] 

be the supreme law of the land. The legislatures and judges of 
the Sirites are to b/ bound by oath to support that constitution. 

Taking these leading principles along with us, the question of 
the constitutionality of the Bank is to be considered as a question 
of authority ; and considered as such a question, it has been 
long since settled by the most revered authorities, legislative, exe- 
cutive, and judicial. It is not pretended that a manifest en- 
croachment and usurpation can be sanctioned in this mode. 
But oj. a doubtful point — vetustatis et consuetudinis maxima est. 
This is such a doubtful case, that Congress may expound the na- 
ture and extent of the authority under which it acts, and this 
practicable interpret-ition become incorporated into the constitu- 
tion. They did expound it by the act establishing the first Bank 
in 1791. 

There are two distinguishing points which entitle this prece- 
dent to great respect. The first is, that it was a cotemporaneous 
interpretation ; the second is, that it was made by the authors of 
the constitution themselves. 

The authors of the Letters of Publius, or the Federalist, 
(themselves the principal authors of the constitution,) in every 
part of their admirable commentary, assert the entire doctrine 
maintained by us. They assert the doctrine of implied, involved, 
and constructive powers ; of powers implied as the necessary 
means of executing the principal powers granted, and as having a 
relation to them. They maintain this, 1st, upon general principles, 
and, 2dly, upon the clause in the constitution granting the power 
to make all laws necessary and proper to carry into effect the 
other powers. They maintain the necessity of making supreme, 
the powers of every kind granted to Congress — and that all the 
laws of Congress should be the supreme law of the land when 
made in pursuance of the constitution. 

I he principal members of the convention who framed the con- 
stitution, passed into the new government organized under it. 
The first Congress enacted the law for incorporating the Bank, 
after the most mature deliberation and full discussion. President 
Washington deliberated upon the bill with his usual caution, and 
before he decided, consulted his cabinet. General Hamilton, 
the principal author of the Federalist, made a report upon the 
subject, which after the passions and prejudices of the day have 



[ 553 ] 

subsided, it may be allowed to call a masterly and conclusive ar- 
gument in favour of the validity of the act. Both the people and 
the States witnessed all this discussion, and acquiesced in the 
result. The President was re-elected, and no man lost his seat in 
Congress for his vote on this momentous question. The courts 
of justice executed the law, with all its penal sanctions ; and in the 
numerous questions arising under it, no lawyer ever thought of 
questioning its constitutionality. There was this unanimous 
concurrence of the national will until the charter expired in 
1811. 

Political considerations alone might have produced the refusal 
to renew the charter at that period ; at any rate, we know that 
they mingled themselves in the debate, and the determination. 
In 1815, a bill was passed in the two Houses incorporating a 
national Bank ; to which Mr. Madison refused his assent, but 
upon considerations of expediency alone, waiving the question 
of constitutionality as having been settled by cotemporaneous ex- 
position, repeated subsequent recognitions, and general acquies- 
cence for twenty years. Mr. Madison well knew what title to re- 
spect thfr decision in 1791 possessed. He was intimately ac- 
quainted with all the circumstances attending the formation and 
adoption of the constitution in which he had so large a share. 

In 1816, all branches of the legislature concurred in establish- 
ing the corporation, whose chartered rights are now in judgment 
before the court. 

Such a body of authority must be conclusive upon a doubtful 
and speculative question like this. It would be unfortunate if it 
were otherwise. The government could never acquire that sta- 
bility which can alone give it strength at home and respect abroad, 
unless such delicate questions were considered as finally settled 
when thus determined. Congress is, prima facie, a competent 
judge of its own constitutional powers. It is not, indeed, as in 
questions of breach of privilege, the exclusive and final judge ; but 
it must first decide, and that in a proper judicial character, upon 
the interpretation of the constitution, as well as the considera- 
tions of political expediency which might justify the measure. 
It had repeated opportunities of exercising its judgment in this 
respect, upon the present subject, not only in the principal acts, 



[ 554 ] 

incorporating the former and the pre-sent Bank, but in the vari- 
ous incidental statiui s subsequently enacted on the same subject. 
On all these occasions, the question of constitutionality was 
equally open to debate. 

There cin be little danger in the Court receiving the decisions 
of Congress as strong, though not conclusive evidence, of the 
extent of its own constitutional powers. Experience has shown, 
what wisdom had anticipated, that its inclination is to abstain 
from the exercise of doubtful powers. Many of its e,xpress and 
unquestionable authorities it has omitted to exercise. In tres- 
passing upon State rights, or those of the people, its responsibi- 
lity is strong and direct. All its own prejudices and attachments 
are so many pledges of its virtue in this respect. But, surely, as 
to the question of necessiti/,( wh\ch relates to political economy,) 
the repeated decisions of Congress and the «^xecutive government 
ai'e entitled to peculiar consideration, as the general question of 
constitutionality is mixed and complicated with the other question, 
whether the establishment of a Bank is a natural means of car- 
rying into effect other powers expressly given. 

The abstract question then reverts, has Congress authority to 
erect ant/ corporation ? 

It has been already shown that the powers of the national go- 
vernment are sovereign powers for sovereign objects. These 
objects are generalized in the preamble to the constitution, and 
are afterwards more specifically enumerated. A more perfect 
union is to be tormed ; justice established ; domestic tranquillity 
insured ; the common defence provided for ; the general welfare 
promoted ; the blessings of liberty secured to the present genera- 
tion and to posterity. The powers are suited to those ends. For 
the attainment of these vast objects, the government is armed with 
powers and faculties corresponding in magnitude. The means 
were intended to be commensurate with the ends, or the consti- 
tution was not intended to accomphsh its own purposes — which 
is an inadmissible supposition The security against abuse was 
provided by the structure of the government. All power en- 
trusted for salutary ends, may be abused ; but if the government 
is well constituted, the abuse cannot be permanent. The people 
will redress it. 



[ 555 ] 

To deal more in detail. The objects of the powers of the 
national government were, 

1st. Security against foreign danger. 

2d. Regulation of the intercourse, of every kind (diplomatic 
and commercial) with foreign nations. 

3d. The maintenance of harmony, and free and friendly inter- 
course among the states. 

4th. Certain miscellaneous objects of general utility. 

5th. Restraint of the States from certain injurious acts. 

6th. An express provision for giving efficacy to all these 
powers. 

1. Security against foreign danger is one of the primitive ob- 
jects of civil society, and an avowed and essential object of the 
Union. The powers requisite for attaining it must be effectu- 
ally confided to the federal councils. They can have no other 
limit fhan the necessity of their employment, and their adapta- 
tion to promote the end. Thus the powers of making war and 
peace, of raising and supporting armies, and of providing and 
maintaining a navy, are given without stint or measure. They 
are indefinite, unlimited, and absolutely sovereign. So also the 
powers of layini; and collecting taxes and duties, imposts and 
excises, of paying the debts of the nation, and of borrowing 
money on its credit, have no other limit (except as to export 
duties) than the objects for which they are conferred. 

2. Intercourse with foreign nations is one of the most impor- 
tant objects of all national government, and was a principal mo- 
tive for the formation of the new constitution. The power over 
this too is given without limit. It includes, besides the authority 
of regulating commerce, and forming treaties of commerce and 
other conventions with foreign States, that of sending and re- 
ceiving ambassadors, and of defining and punishing offences 
against the law of nations. The States are prohibited from in- 
terfering with the exercise of those authorities. 

3. For the maintenance of harmony and of friendly intercourse 
among the different States of the Union, are given the power of 
establishing uniform naturalization and bankrupt laws ; to coin 
money, and regulate the circulating medium, and the standard of 
weights and measures ; to regulate commerce among the States : 



[ 556 ] 

to establish post-offices and post-roads ; to prescribe the manner 
in which the records of one State shall be proved and their effect 
in other States. 

4. The miscellaneous objects of general utility were to be at- 
tained by the power to grant patents and copy-rights ; to exercise 
exclusive legislation over the District of Columbia, and places 
purchased for the use of fortifications and dock-yards ; to declare 
the punishment of treason ; to admit new States into the Union ; 
to dispose of and make all needful rules and regulations respect- 
ing the territory and other property belonging to the Union ; to 
guarantee to every State a republican form of government. 

5. The provisions of restriction upon the States are, as to 
making treaties, and alliances with foreiiin states or with each 
other ; granting letters of marque and reprisal ; emitting bills of 
credit ; making any thing bui gold and silver a tender ; in pass- 
ing any bill of attainder, ex post facto law, or law impairing the 
obligation of contracts ; granting any title of nobility ; laying 
any duty on imports or exports ; keeping troops or ships of war, 
in time of peace ; engaging in war, &c. 

6. The provisions for giving efficacy to all those powers, are 
the power to make all laws necessary and proper for carrying in- 
to execution the other powers vested in Congress, or in the go- 
vernment of the United States, or in any department or offices 
thereof; that the constitution and the laws and treaties made in 
pursuance of it shall be the supreme law of the land ; that the 
judges in every State shall be bound thereby ; and that the mem- 
bers of the State legislatures and all other officers shall take an 
oath to support the same. 

And the question is, whether a government with all these pow- 
ers and faculties has authority to erect a corporation, which is 
a power inherent in and inseparable from all idea of sovereign 
power ? 

Thf^re is no express prohibition in the constitution to prevent 
Congress from creating a corporation. It is admitted that the 
States possess the authority as a distinct, substantive power of 
sovereignty, which remains entire in them because not expressly 
granted to the national government. But the power of legisla- 
tion in the State governments is not unlimited. There are severM 



[ 557 ] 

limitations to it. 1st, From the nature of all government, espe« 
cially of republican government, in which the residuary powers 
of sovereignty, not granted specifically, or by inevitable impli- 
cation, are reserved to the people. 2dly, From the express limi- 
tations contained in the State constitutions : and, 3dly, From the 
express prohibitions to the States contained in tht- national consti- 
tution. Admit that the State governments have the right of esta- 
blishing corporations : the question is, whence did they derive 
it ? It is no where expressly granted to the State legislatures in 
their several constitutions. It is taken by implication as a ne- 
cessary means of giving effect lo the general powers of legislation : 
but it cannot be exercised to accomplish any of the ends which 
are beyond the sphere of their constitutional authority. Kvery 
legislative enactment, without exception, is a mean for accom- 
plishing some ol the ends of government. Laws are not ends ; 
they are means for accomplishing ends. A corporation is crea- 
ted by a legislative act, not because the corporation is an end 
valuable in itself, but because it is a necessary and proper means 
towards the accomplishmeni of a valuable end. Some public 
convenience — some beneficial result, is aimed at by it ; and be- 
cause the beneficial result is within the power of the State go- 
vernment, so is the establishment of the corporation If it be 
inquired whence the first legislature that exercised the authority 
of erecting a corporation acquired that power, the answer must 
be from the right to accomplish that purpose or result for which 
the corporation is used as an instrument or means. Upon the 
same foundation rests the authority of Congress to create a .cor- 
poration. It has not a right to create a corporation in all cases, 
but only in cases within the scope of its general powers of legis- 
lation — as means of executing those powers. A State govern- 
ment has no right to make a corporation for all purposes indis- 
criminately. A State government could no more make a corpo- 
ration, and to effect a purpose exclusively belonging to the na- 
tional government, than Congress can make a corporation to 
fulfil a State object. Neither can the State legislatures make a 
corporation to effect any object on which they are prohibited 
from legislating by their own constitutions or the constitution 
•f the United States. 

71 



[ 558 ] 

But why is the power of creating a corporation considered a 
distinct, substantive act of sovereignty, so that it cannot be taken 
by implication ? Is it on account of its superior dignity and im- 
portance ? If so, then it must necessarily belong to the national 
government, which is supreme within the sphere of its constitu- 
tional authority, and whose general legislative powers are of 
much greater magnitude than those of the States. The power of 
creating corporations is not an end of any government, whether 
supreme or subordinate, general or limited in its ordinary powers : 
it is one of the necessary means of accomplishing the ends of 
all iiovernments. It is an authority inherent in, and incident to, 
all sovereignty. That it is an exertion of sovereign power, is 
admitted ; but not more so than any other act which requires a 
law or a clause in a law. It is no more a distinct exercise of so- 
vereign power than that of inflicting capital punishments. 

The history of corporations will illustrate this position. They 
are the growth of the Roman law, and were transplanted into 
the common law of England and all the municipal codes of mo- 
dern Europe. From England they were derived to this country. 
But, in the civil law, a corporation could be created by a mere 
voluntary association of individuals. And, in England, the au- 
thority of Parliament is not necessary to create a corporate bo- 
dy. The king may do it, and may communicate his prerogative 
power to a subject ; so little is this regarded as a transcendent 
power of sovereignty in the British constitution. So also in our 
constitution, although it can only be exercised by the legislative 
department, it ought to be regarded as a subordinate mean to 
carry into effect the great ends of government. 
« What reason can there be why this power should not be used 
by the National government, as well as by the State governments, 
as the means of executing other powers, sovereign in their nature, 
if su>^ed to that purpose? It is not now necessary to prove that 
it is suited to any such purpose. It may be assumed, argumenti 
gratia: and supposing it to be so, it is impossible to imagine a 
reason why it should not be thus used, unless it could be shown 
that there whs something of a singular character in this power, 
so that no government could assume it without an express grant. 
If this were the nature of the power, the State governments 
could not exercise it without such a grant. No government can 



[ 559 ] 

use it otherwise than as a process towards a result. It is always 
an incidental and auxiliary power 

It had been said by one of the counsel on the other side, that 
there are no implied powers under the idea of means to an end. 
The constitution has defined both ends and means, and this is 
not enumerated among either : it is not to be taiien by implication, 
as a mean of executing any or all of the powers expressly grant- 
ed ; because other means, not more important or more sovereign 
in their character, are expressly enumerated. For example : 
one of the gre.it ends of the Union is to provide for the com- 
mon defence ; but the means of accomplishing this object, are 
expressly given, such as the power of laying and collecting 
taxes, &c. 

The answer to this argument, and the example put to illustrate 
it, is, that those means which are expressly defined, involve other 
means which must be taken by implication, and thus the princi- 
pal means become, with reference to those other means, ends. 
Many particular means are of course involved in the general 
means, and, in that case, the general means become the end, and 
the smaller objects the means. Thus : I am to gain a sum of 
money by going to Rome. The end is the money ; the general 
means, the going to Rome. But these means involve other par- 
ticular means, such as providing post-horses, &c. The going to 
Rome now becomes the end, and the post-horses, &c. the means. 
But I cannot get those post-horses without borrowing money to 
pay for them. The post-horses are now the end, and the bor- 
rowing, the means. So that here is a regular connexion and 
subordination of means to ends, until the principal purpose is 
accomplished. 

What is the use of a naked power to lay and collect taxes, if 
you cannot do every thing necessary to accomplish the purpose ? 
And if you can do all that is necessary for that purpose, you 
have involved powers, detailed powers, not expressed by name, 
but wrapped up in a general power. These are implied powers. 
It was impossible for the framers of the constitution to specify 
prospectively all the powers, necessary as means to ends, both 
because it would have involved an immense variety of details, 
and because it was impossible for them to anticipate the infinite 
variety of circumstances arising in such an unexampled state of 



[ 560 ] 

political society as ours, for ever changing and for ever improv- 
ing. How unwise would it have been to attempt to legislate im- 
mutably for occasions which had not then occurred, and which 
could have been foreseen but dimly and imperfectly ! The con- 
stitution is a concise instrument consisting of a few pages only 
The exigencies upon which it must act, are almost infinite : in- 
cluding all the complicated concerns of a great nation, diversi- 
fied from year to year, with new circumstances, and new combi- 
nations of old circumstances, new subjects rising into existence, 
old disappearing. 

If there be no implied powers, consider the details which must 
have entered into the constitution itself. It would become a vast 
and voluminous digest, to which some people's speeches would 
be as short as a single stanza compared to the ballad of the twen- 
ty thousand virgins mentioned in the Spectator. The constitu- 
tion must have contained a distinct power for every clause of 
every act of Congress. The whole statute book of the United 
States is a record of implied powers, without the use of which 
the constitution would be a dead letter. It is filled with powers 
derived from implication. The power to lay and collect taxes 
will not execute itself. Congress must designate in detail all the 
means of execution, which must necessarily involve a vast varie- 
ty of regulations no where specified in the constitution. So also 
the power of establishing post-offices and post-roads involves 
that of punishing the ofience of robbing the mail. But there is 
no more necessary connexion between the punishment of mail 
robbers, and the power of establishing post-offices and post-roads, 
than there is between the institution of a Bank, and the collec- 
tion of the revenue and payment of the public debts and ex- 
penses. And consider the absurdity of supposing that the pow- 
er of taking away life may be implied, or used as a means, and 
yet that the creation of a corporation cannot ! So, light-houses, 
beacons, buoys, and public piers, have all been established under 
the general power to regulate commerce. But they are not in- 
dispensably necessary to commerce. It might linger on without 
these aids, though exposed to more perils and losses. So, Con- 
gress has express authority to coin money, and to guard the pu- 
rity of the circu'Hling medium, by providing for the punishment 
of counterfeiting the current coin : but laws are also made for 



[ 561 J 

punishing the offencie of uttering and passing the coin thus 
counterfeited. Here one of the means of accomplishing the end 
is expressed, and the other is implied. The law which punishes 
the offering of a bribe to a judge of the L'nited States ; the law 
which punishes the embezzling and alteration of records ; the law 
which punishes smuggling — whence are they derived hut from 
implication as means necessary and proper to carry into effect 
powers expressly granted ? 

Powers, as means, may then be implied in many cases. And if so, 
why not in this case as well as any other ? The power of making 
all needful rules and regulations respecting the territory of the 
United States, is one of the specified powers of Congress. Un- 
der this power, it has never been doubted that Congress had au- 
thority to establish corporations within the territorial govern- 
ments. But this power is derived entirely from implication. It 
is assumed as an incident to the principal power. If it may be 
assumed in that case upon the ground thai it is a necessary means 
of carrying into effect the power expressly granted, why may it 
not be assumed in the present case upon a similar ground ? 

But it is said, that the end, or principal means, may be sove- 
reign, and still Congress is not at liberty to use nny subordinate 
means it chooses : it has not a sovereign discretion to adopt all 
or any means. The means or law must be an absolutely neces- 
sary means or law. 

It is readily admitted that there must be a relation in the na- 
ture and fitness of things, between the means used and the end 
to be accomplished. But the question is, whether the necessity 
which will justify a resort to a certain mean, must be an absolute, 
indispensable, inevitable necessity ? The power of passing all 
laws necessary and proper to carry into effect the other powers 
specifically granted, is 9. political power. It is a matter of legisla- 
tive discretion, and those who are to ext-rcise it have a wide range 
of choice in selecting means. In its exercise, the mind must 
compare different means with each other. It addresses itself to 
a deliberative assembly empowered to accomplish certain general 
objects by what it deems the most appropriate means. In the 
choic of these means a considerable latitude would be allowed. 
In accomplishing a political object, the mind is employed in a 



[ 562 ] 

selection of means. But absolute necessity excludes all choice. 
Tlie necessity which is required, can never be the subject ot 
mathematical demonstration. It is a question of political and 
moral science, in which moral certainty only can be arrived at. 
It is the peculiar province of a legislative assembly to judge of 
such questions. Congress is appointed for that purpose. It 
alone has the fit means of inquiry and decision. The security 
against abuse is to be found in the constitution and nature of the 
government, in its popular character and structure. 

To make the validity of a law depend upon the more or less 
of necessity for passing it, would be absurd and ridiculous. A 
law would never be sure of validity. The judiciary has no 
means of determining by such a criterion. hLven absolute ne- 
cessity cannot be judged ot here ; still less can practical necessity 
be determined in a judicial forum. The natural place for the 
inquiry is in the legislature, where a comparison of different 
means may be instituted. Not that the legislature is at liberty to 
adopt any and all means. It cannot adopt prohibited means. The 
judiciary must see that what is done is not a mere evasive pretext 
for usurping substantive powers not intended to be granted. 
For this purpose it must inquire whether the means assumed 
have a connexion and relation in the nature and fitness of things 
with the end to be accomplished. The vast variety of possible 
means excludes the practicability of judicial determination of 
the fitness and policy of a particular mean. It is sufficient that it 
does not appear to be violently and unnaturally forced into the 
service, or fraudulently assumed, in order to usurp a new substan- 
tive power of sovereignty. The criterion of absolute necessity 
would drive Congress to the exercise of the feeblest means only. 
The true rule, therefore, must be, the use of such means as are 
adapted to effect the object in the most advantageous manner for 
the general purposes of the constitution, with a discretion in Con- 
gress to judge of that question. 

The doctrine of implied powers is stated by the authors of the 
Federalist in this way : " Shall the Union be constituted the 
guardian of the common safety ? Are fleets, and armies, and 
revenues, necessary to this purpose ? The government of the 
Union must be empowered to pass all laws, and to make all 



[ 563 ] 

regulations which have relation to them." No. 23. " It must, 
in short, possess all the means and have a right to resort to all 
the methods of executing the powers with which it is t ntrusted, 
that are possessed by the government of the particular States." 
No. 16. The subject is more fully discussed in the 44th IS'o., 
where in considering the clause by which Congress has power • 
to make all laws necessary and proper for carrying into effect 
the other powers grunted, it is said, " Had the constitution been 
silent on this head, there can be no doubt that all the particular 
powers requisite as means of executing the general powers, would 
have resulted to the government by unavoidable implication. No 
axiom is more clearly established in law, or in reason, that where- 
ever the end is required, the means are authorized ; wherever a 
general power to do any thing is given, every particular power ne- 
cessary for doing it, is included." And yet we are told that the 
framers of the constitution did not understand their own work, 
and that this grant of means excludes all such as are not strictly 
and absolutely necessary. But it is certain that this clause is not 
restrictive. It professes to give capacity, not to take it away. It 
did neither the one nor the other. It was merely inserted ex 
ahundanti cautela : and it now appears to have been wisely done, 
as the implied powers are denied to exist. It has already been 
shown what is the general theory it was intended to enforce. It 
will be as easy to show that the clause is in exact conformity 
with that theory. 

Compare these terms as they are used in that part of the con- 
stitution now in question, with the qualified manner in which they 
are used in the 10th section of the same article. In the latter, 
it is provided that " No State shall, without the consent of Con- 
gress, lay any imposts, or duties on imports or exports, except 
what may be absolutely necessary for executing its inspection 
laws." In the clause in question, " Congress is invested with the 
power to make all laws which shall be necessary and proper for 
carrying into execution the foregoing powers, ' &c. There is 
here then, no qualification of the necessity. It need not be ab- 
solute. It may be taken in its ordinary grammatical sense. 
The word necessary, standing by itself, has no inflexible mean- 
ing ; it is used in a sense more or less strict, according to the sub- 



[ 564 ] 

ject. This, like many other words, has a primitive sense, and 
another fic;urative and more relaxed. It may be qualified by 
the addition of adverbs of diminution or enlargement, such as 
?;cry, indispensably, more, less, or absolutely necessary ; wliich 
last is the sense in which it is used in the 10th section of the 
same article. But that it is not always used in this strict and 
rigorous sense, may bo proved by tracing its definition and ety- 
mology in every human language. 

If then all the powers of the national government are sove- 
reign and supreme ; if the power of incorporation is incidental, 
and involved in the others ; if the degree of political necessity 
which will justify a resort to a particular means to carry into 
effect the general powers of the government, can never be a cri- 
terion of judicial determination, but must be left to legislative 
discretion — it only remains to inquire, whether a Bank has a 
natural and obvious connexion with other express or implied 
powers, so as to become a necessary and proper mean of carry- 
ing them into execution. 

A Bank might be established as a branch of the public admi- 
nistration without incorporation. The government might issue 
paper upon the credit of the public faith pledged for its redemp- 
ti(m, or upon the credit of its property and funds. Let the of- 
fice where this paper is issued, be made a place of deposit for 
the money of individuals and authorize its officers to discount, 
and a Bank is created. It only wants the forms of incorporation. 
But surely it will not be pretended that clothing it with these 
forms would make such an establishment unconstitutional. In 
the Bank which is actually established and incorporated, the 
United States are joint stockholders and appoint joint directors ; 
the secretary of the treasury has a supervising authority over its 
affairs ; it is bound, upon his requisition, to transfer the funds of 
the government wherever they may be wanted ; it performs all 
the duties of commissioners of the loan-office ; it is bound to 
loan the government a certain amount on demand ; its notes are 
receivable in payment of public debts, duties, and taxes ; it is 
intimately connected, according to the usage of the whole world, 
with the power of borrowing money, and with all the financial 
operations of the government. It is especially connected with 



[ 565 ] 

the power of laying and collecting taxes. That power implies 
the authority, not only to impose the tax, but to prescribe in what 
medium it shall be paid, and to adopt measures which may pro- 
duce ability to pay with promptitude. Times may exist, and 
have existed, when it wi>uld be impossible to collect the taxes in 
specie, and the national government would be compelled to receive 
the paper of State Banks, which Banks refused to pay specie, and 
were wholly irresponsible to that government. There may be 
many emergencies, such as insurrection, sudden war, or invasion, 
when the aid <»f a great monied corporation would be essentially 
necessary. The resources derived from taxation are only suited 
to the ordinary state of things. The government must occa- 
sionally resort to loans. 

The establishment of such a corporation is also closely con- 
nected with tll^^ power to coin money, and regulate the value 
thereof, and of foreign coin, and to regulate foreign commerce 
and that between the States ; especially when it is considered that 
the States are piohibited from coining money, emitting bills of 
credit, or making any thing but gold and silver coin a tender in 
the payment of debts. It provides a circulating medium by 
which foreign commerce and that between the States may be 
more conveniently carried on, and exchanges facilitated. It is 
true, there are State Banks incorporated by which a circu- 
lating medium to a certain extent is provided. But that only di- 
minishes the quantum of necessity. Besides, there is danger 
that this power of establishing local Banks may be abused. 
Some of the States have already created Banks with the pledge 
of their own public credit for the redemption of the notes issu- 
ed. This seems to be within the constitutional prohibition as to 
bills of credit, and certainly Congress may counteract the evils 
of these local currencies by a national currency. It is more in 
the spirit of the constitution that Congress should influence the 
medium of commerce, the substitute of coin, than that the Stntes 
should control it, who are forbidden from coining or from issuing 
paper money. 

It is also connected with the power of making all needful re- 
gulations for the government of the territory and other property 

72 



[ 566 ] 

of the United States. If they may establish a corporation to 
regulate their territory, they may establish one to regulate their 
property. S heir treasure is their property, and may be invested 
in this mode. It is put in as a joint stock in partnership ; but 
not for the purpose of carrying on the trade of banking as one 
of the ends for which the government was established ; but only 
as an instrument or means for executing its sovereign political 
powers. This instrument could be rendered effectual for this 
purpose in no other way than by mixing the property of indivi- 
duals with that of the public. The Bank could not otherwise 
acquire a credit for its notes. 

But the greatest and only question of real difficulty in the 
cause, is that which respects the assumed right of the States to 
tax this Bank thus established by Congress as an instrument to 
give effect to the general powers of the government. 

This is a question comparatively of no importance to the indi- 
vidual States, but of vital importance to the Union. Deny this 
exemption of the Bank, and what is the consequence ? There is 
no express provision in the constitution, which exempts any of 
the national institutions or property from taxation by the States. 
It is only by implication that the army, and navy, and treasure, and 
judicature of the Union, are exempt from State taxation. Yet they 
are practically exempt ; and they must be, or it would be in the 
power of any one State to destroy their use. Whatever the United 
States have a right to do, the individual States have no right to 
undo. All the sovereign powers of Congress, whether express 
or implied, are upon a level. Its power to establish a Bank, 
like its other powers, is supreme, or it would be nothing. Rising 
out of an exertion of paramount authority, it cannot be subject 
to any other power. Such a power in the States, as that now con- 
tended for, is manifestly repugnant to the power of Congress ; 
since a power to establish, implies a power to continue and pre- 
serve. There is a manifest repugnancy between the power of 
Maryland to tax, and the power of Congress to preserve, this in- 
stitution. A power to build up what another may pull down at 
pleasure, is a power which may provoke derision, but can do 
nothing else. 



t 567 ] 

But we are told that it is enougti for the State to show its co- 
equal taxing power on internal objf'cts. The equality of that 
power is not denied ; but it is nothing to the purpose of the argu- 
ment, because this case is an exception out of it. The concur- 
rent power of the States to tax is consistent with the power of 
Congress to tax the same objects. There is no repugnancy. But 
the exemption now insisted on is an exception by reason of evi- 
dent inc.impatibility. It is an exception, 

1. Because the tax operates upon the legislative faculty of 
Congress, It is a tax upon the charter or law. It is, or may be 
(in the discretion of the State) a prohibition against the exercise 
of legislative power. 

2, Because it operates upon the public or national property, so 
far as it operates upon property at all. 

Are there no exceptions out of the internal taxing power of 
the States, because, the taxing power of Congress on those ob- 
jects is not exclusive ? All that can be said is, that the co-equal 
taxing power of Congress does not make an exception in this 
case. It is still a question whether any other consideration does. 

If the States may lay a tax upon the Bank to the amount pro- 
vided in this act of Maryland, they may lay a tax to any amount. 
If they may tax for revenue, they may lay a tax amounting to a 
prohibition under the pretext of revenue. The law now in ques- 
tion acts directly on the operations of the Bank, and may destroy 
it. There is no limitation or check in this respect, but in the 
discretion of the State legislature. That discretion cannot be 
controlled by the national legislature. Whenever the local coun- 
cils of Maryland will it, the Bank must be expelled from that 
State. What one State can do, all can do. If one national in- 
stitution may be destroyed in this manner, all may be destroyed 
in the same manner. A right to tax without limit or control, is 
essentially a power to destroy. If this power to tax the national 
property and institutions exists in the State of Maryland, it is 
unbounded in extent. There can be no check upon it, either by 
Congress or the people of the other States. 

Is there then any intelligible, fixed, defined boundary of this 
taxing power ? If any, it must be found in the controlling au- 
thority of this Court. If it does not exist here, it is a nonentity. 



[ 568 ] 

But the Court cannot say what is an abuse, and what is a legiti- 
mate use of the power. The legislative intention may be so 
masked, as to dt-fy the scrutiny of the Court. How will the 
Court ascertain, a priori, that a given amount of tax will crush 
the Bank ? It is essentially a question of political economy, and 
there are always a vast variety of facts bearing upon it. The 
facts may be mistaken. Some important considerations belong- 
ing to the subject may be kept out of sight. They must all vary 
with times and circumstances. The result, then, must determine 
whether the tax is destructive. But the Bank may linger on for 
some time, and that result not be known until the work of de- 
struction is consummated. A criterion which has been proposed, 
is to see whether the tax has been laid impartially upon the State 
Banks, as well as the Bank of the United States. Even this is an- 
unsafe test ; for the State governments may wish and intend to 
destroy their own banks. Th'' existence of any national institu- 
tion ought not to depend upon so frail a security. But the tax 
now in question, is levelled exclusively at the Branch of the United 
States Bank, established in Maryland. There is, in point of fact, 
a branch of no other Bank within that State, and there can le- 
gally be no other. It is a fundamental article of the State con- 
stitution of Maryland, that taxes shall operate on all the citizens, 
impartially and uniformly, in proportion to their property ; with 
the exception, however, of taxes \a.\d for political purposes. This 
is a tax laid for a political purpose ; for the purpose of destroy- 
ing a great institution of the national government ; and if it were 
not imposed for that purpose, it would be repugnant to the State 
constitution — as not being laid uniformly on all the citizens in 
]>roportion to their property. So that the legislature cannot dis- 
avow this to be its object, without at the same time confessing a 
flagrant violation of the State constitution. Compare this act 
with that of Kentucky, which is yet to come before the Court, 
and the absolute necessity of repressing such attempts in their 
infancy will be evident. Admit the validity of the Maryland 
tax, and that of the Kentucky law follows inevitably. How can 
it ^le said that the office of discount and deposit in Kentucky 
cannot bear a tax of sixty thousand dollars per annum, payable 
monthly ? Probably it could not ; but judicial certainty is essen- 
tial ; and the Court has no means of arriving at that certainty. 



[ 569 ] 

There is, then,hpre an absolute repugnancy of power to power. 
We are not bound to show that the particular exercis«> ot the 
power in the present case, is absolutely repugnant. It is sufficient 
to show that the same power may be thus exercised. 

Judicial proceedings are practically a subject of taxation in 
many countries, and in some of the States of this Union. The 
Stales are not expressly prohibited in the constitution from taxing 
th(- judicial proceediii2[s of the United States. Yet such a pro- 
hibition must be implied, or the administration of justice in the 
national Courts might be obstructed by a prohibitory tax. But 
such a tax is no more a tax on the legislative faculty of Congress 
than this. The Branch Bank in Maryland is as much an institu- 
tion of the sovereign power of the Union, as the Circuit Court 
of Maryland. One is established in virtue of an implied power ; 
the other by an express authority ; but both are equal and equally 
supreme. The Bank and its branches are no moi-e within the 
jurisdiction of the States than the Courts of the Union. All the 
property, and all the institutions of the United States, are, con- 
structively, without the local, territorial jurisdiction of the indi- 
vidual ">tates, in every respect and for every purpose, including 
that of taxation. And why is it that the judicial tribunals are 
not within the local jurisdiction of the States ? Because it would 
defeat the power to establish them. Their exemption from that 
jurisdiction is entirely matter of construction and implication. 
The Courts of the Union are paramount to the power of taxa- 
tion in the States, because they might be crushed by any State 
that quarrelled with them. The same reason applies to the case 
of the Bank. The immunity must extend to this case, because 
the power of taxation imports the power of taxation for the pur- 
pose of prohibition and destruction. The Bank is as much a na- 
tional institution and an instrument of government for fiscal pur- 
poses, as the Courts are for judicial purposes. They both proceed 
from the supreme power, and equally claim its protection. There 
is the same necessity for rescuing them both from the taxing pow- 
er of the States. A tax by the States would have, or might have,- 
the same mischievous effects on either. And if a lax ever so 
light were to be imposed by a State upon the Courts of the 
Union, would it be .submitted to, because it was light ? or because 
it was laid at the same time upon the State Courts ? 



[570 ] 

There is in all these cases extra-territoriality, so far as is ne- 
cessary to give full effect to the power to which the institution 
owes its being. The immunity of foreign public vessels from 
local jurisdiction, whether State or national, was established in 
the case of the Exchange, not upon positive municipal law, nor 
upon the conventional law ; but it was iniplied from the usage of 
nations, and the necessity of the case. It was implied upon the 
same ground with the fiction which exempts a foreign sovereign, 
or his minister, from the local jurisdiction. If in favour of foreign 
governments, such an edifice of exemption has been built up, in- 
dependent of the letter of the constitution, or of any other writ- 
ten law, shall not a similar edifice be raised on the same founda- 
tions for the security of our own national government ? If a fo- 
reign ship of war, or foreign troops, coming into the territory of 
the country, by permission, would l)e exempt from the local ju- 
risdiction, shall not the army, and nav}', and fiscal institutions of 
the Union be equally exempt ? 

These analogies show that there may be exemptions from 
State jurisdiction which are not detailed in the constitution, but 
arising out of general considerations. If Congress has power to 
do a particular act, no State can impede, retard, or burden it. If 
some of the powers of Congress necessarily involve incompati- 
bility with the taxing power of the States, this power may he in- 
compatible. This is incompatible ; for a power to impose a tax 
ad libitum upon the notes of the Bank is a power to repeal the 
law by which the Bank was created. The Bank cannot be use- 
ful, it cannot act at all unless it issues notes. If the present 
tax does not disable the Bank from issuing its notes, another 
may ; and it is the authority itself which is questioned as being 
entirely repugnant to the power which established and pre- 
serves the Bank. Two powers thus hostile and incompatible 
cannot co -exist. 

Though every State in the Union may impose a stamp tax, 
yet no State can impose a stamp tax upon the judicial proceed- 
ings, the public records, the custom-house papers of the United 
States. But there is no such express exception to the general tax- 
ing power of the States contained in the constitution. It stands 
upon plain implication. It arises from the general nature of the 
government, and from the principle of the supremacy of the na- 



[ 571 ] 

lional powers, and the laws made to execute thenij over the State 
authorities and State laws. • 

It is, liowever, objected that the act of Congress incorporating 
the Bank withdraws property from taxation by the State, which 
would be otherwise liable to State taxation. The answer is, that it is 
immaterial if it does thus withdraw certain property from State 
taxation, if Congress had authority to establish the Bank ; siiice 
the power of Congress is supreme. But in fact, it withdraws 
nothing from the mass of taxable property in Maryland, which 
that State could tax The whole capital of the Bank belonging 
to private stockholders is drawn from every State in the Union, 
and the stock belonging to the United States previously consti- 
tuted a part of the public treasure. Neither the stock belcmging 
to citizens of other Stat^-s, nor the privileged treasure of the Uni- 
ted States mixed up with this private property, were previously 
liable to taxation in Maryland ; and as to the stock belonging to 
its own citizens, it still continues liable to State taxation, as a 
portion of their individual property, in common with all the other 
private property in the State. The establishment of the Bank, 
so far from withdrawing any thing from taxation by the States, 
brings something into Maryland which the State may tax. The 
charter creates the capital stock, which is the thing taxed : and as 
to its dividends, so far as they belong to citizens of Maryland, 
they will fall within the grasp of taxation in due season when 
separated from the institution. But this tax has no reference to 
any thing but the institution. 

But what if it does withdraw property from State taxation ? 
The materials of which the ships of war belonging to the United 
States are constructed were previously liable to State taxation. 
But the instant they are converted into public property for the 
public defence, they cease to be subject to State taxation. So 
money paid to the government of the United States in duties'and 
taxes is withdrawn from State taxation. Here the treasure of 
the United States and that of individuals, citizens of Maryland 
and of other States, are undistinguishably confounded in the 
capital stock of this great national institution, which, it has been 
before shown, could be made useful as an instrument of finance 
in no other mode than by thus blending together the property of 



[ 572 ] 

the gov-eriiment and of private merchants. This partnership is, 
therefore, one of necessity on the part of the United States. 
Either this tax opeiates upon the franchise of ihe B^ink, or upon 
its property. If upon the former, then it comes directly in con- 
flict with the exercise of a ^reat sovereign authority of Congress ; 
if upon the lattt^r, then it is a tax upon the property of the United 
States; since the hiw does not, and cannot, in imposing a statnp 
tax, distinguish between their property and that <>f individuals. 

But it is said that Congress possesses and has exercised the 
unlimited authority of taxing the State Banks ; and therefore, the 
States ought to have a correspondent right to tax the Bank of the 
United States. The answer to this objection is, that in taxing 
the State Banks, the States in Congress assembled, exercise their 
power of taxation. Congress exercises the power of the People. 
The whole acts on the whole. But the State tax is a part acting 
on the whole. Even if the two cases were precisely the same, 
the consequence would be rather to exempt the State Banks 
from federal taxation, than to subject the national Bank to taxa- 
tion by a particular State. But the State Banks are not machines 
essential to execute the powers of the State sovereignties, and, 
therefore, such a consequence cannot follow. The people of the 
Union, and the sovereignties of the several States, have no con- 
trol over the taxing power of a particular State. But they have 
a control over the taxing power of the United .States, in the re- 
sponsibility of the rai'mbers of the H^use of Representatives to 
the people of the State which sends them, and of the Senators to 
the legislature by whom they are chosen. But there is no cor- 
respondent responsibility of the local legislature of Maryland, 
for exiimple, to the people of the other States of the Union. The 
people of the other States are not represented in the legislature 
of Maryland, and can have no control, directly or indirectly, over 
its proceedines. The legislature of Maryland is responsible on- 
ly to the people of that State. The national government can 
withdraw nothing from the taxing power of the States, which is 
not for the purpose of national benefit and the common welfare, 
and within its defined powers. But the local interests of the 
particular States are in perpetual conflict with the interests of the 
Union ; which shows the danger of adding increased power to the 



[ 573 ] 

partial views and local prejudices of the States. If the tax 
imposed by this law be not a tax on the property of the United 
States, it is not a tax on any property ; and it mast, consequently, 
be a tax on the faculty or franchise. It is then a tax on the legis« 
lalive faculty of the Union, on the charter of the Bank. It im- 
poses a stamp duty upon the notes of the Bank, and thus stops 
the very source of its circulation and life. It is as much a direct 
interference with the legislative faculty of Cona;ress, as would be 
a tax on patents, or copy-rights, or custom-house papers, or judi- 
cial proceedings. 



N**' VII. 



SPEECH ON THE MISSOURI QUESTION. 



As I am not a very frequent speaker in this Assembly, and 
have shown a desire, I trust, rather to listen to the wisdom of 
others than to lay claim to superior knowledge by undertaking 
to advise, even when advice, by being seasonable in point of 
time, might have some chance of being profitable, you will, per- 
haps, bear with me if I venture to trouble you once more on 
that eternal subject which has lingered here, until all its natural 
interest is exhausted, and every topic connected with it is literally 
worn to tatters. I shall, I assure you. Sir, speak with laudable 
brevity — not merely on account of the feeble state of my health 
and from some reverence for the laws of good taste which for- 
bid me to speak otherwise, but also from a sense of justice to 
those who honour me with their attention. My single purpose 
as I suggested yesterday, is to subject to a friendly, yet close ex- 
amination, some portions of a speech, imposine certainly on ac- 
count of the distinguished quarter from whence it came—not 

73 



[ 574 ] 

very imposing: (if .1 may so say. without departing from that 
respect which I sincerely feel and intend to manifest for eminent 
abilities and long experience) tor any other reason. 

I believe, Mr. President, that I am about as likely to retract 
an opinion which I have formed, as any member of this Body, 
who, being a lover of truth, inquires after it with diligence be- 
fore he imagines that he has found it ; but I suspect that we are 
all of us so constituted as that neither argument nor declamation, 
levelled against recorded and published decision, can easily dis- 
cover a practicable avenue through which it may hope to reach 
either our heads or our hearts I mention this, lest it may excite 
surprise, when I take the liberty to add, that the speech of the 
honourable gentleman from \eyv-York, upon the great subject 
with which it was principally occupied, has left me as great an 
infidel as it found me. It is possible, indeed, that if I had had the 
good fortune to hear that s|>eech at an earlier stage of this de- 
bate, when all was fresh and new, although I feel confident that 
the analysis which it contained of the constitution, illustrated as 
it was by historical anecdote rather than by reasoning, would 
have been just as unsatisfactory to me then as it is noiv, I might 
not have been altogether unmoved by those warnings of ap- 
proaching evil which it seemed to intimate, especially when taken 
in connexion with the observations of the same honourable gen- 
tleman on a |)receding day, " that delays in disposing of this 
" subject, in the manner he desires, are dangerous, and that we 
" stand on slippery ground." I must be permitted, however, 
(speaking only for myself,) to say, that the hour of dismay is 
passed. I have heard the tones of the larum bell on all sides, 
until they have become familiar to my ear, and have lost their 
power to appal, if, indeed, they ever possessed it. Notwith. 
standing occasional appearances of rather an unfavourable des- 
cripii(m, I have long since persuaded myself that the Missouri 
Question, as it is called, might be laid to rest, with innocence 
and safety, by some conciliatory compromise at least, by which 
as is our duty, we might reconcile the extremes of conflicting 
views and feelings, without any sacrifice of constitutional princi- 
ple ; and in any event, that the Union would easily and trium- 
phantly emerge from ihose portentous clouds with which this 
controversy is supposed to have environed it. 



[ 575 ] 

I confess to you, neverthf-less, that some of the principles an- 
nounced by the honourable gentleman from "^ew-Vork,* with 
an explicltness that reflected the highest credit on his can- 
dor, did, when they were first presented, startle me not a little. 
They were not perhaps entirely new. Perhaps I had seen them 
before in some shadowy and doubtful shape, 

If shape it might be called, that shape had none 
Distinguishable in member, joint, or limb. 

But in the honourable gentleman's speecli they were shadowy 
and doubtful no lonirer. He exhibited them in forms so boldly 
and accurately df^fined with contours so distinctly traced — 
with features so pronounced iiid striking, that I was unconscious 
for a moment that they might be old acquaintances. I received 
them as novi hospites within these walls, and gazed upon them 
With astonishment and alarm. I have recovered, however, thank 
God, from this paroxysm of terror, although not from that of 
astonishment. I have sought and found tranquillity and courage 
in ray former consolatory faith. My reliance is that these prin- 
ciples will obtain no general currency ; for, if they should, it re- 
quires no gloomy imagination to sadden the perspective of the 
future. My reliance is upon the unsophisticated good sense and 
noble spirit of the American people. I have what I may be al- 
lowed to call a proud and patriotic trust, that they will give 
countenance to no principles, which, if followed out to their ob- 
vious consequences, will not only shake the goodly fabric ot the 
Union to it> foundations, but reduce it to a melancholy ruin. 
The people of this country, if I do not wholly mistake their 
character, are wise as well as virtuous. They know the value of 
that federal association which is to them the single pledge and 
guarantee of power and peace. Their warm and pious affections 
will cling to it as to iheir only hope of prosperity and happiness, 
in defiance ol pernicious abst'actions, by whomsoever inculcated, 
or howsoever seductive and alluring in their aspect. 

Sir, it is not an occasion like this, although connected, as con- 
trary to all reasonable expectation it has been, with fearful and 
disorganizing theories, which would make our estimates, whether 

•Mr. King, 



[ 576 ] 

fanciful or sound, of Natural Law, the measure of civil rights 
and political sovereignty in the social state, that can harm the 
Union. It must, indeed, be a mighty storm that can push from 
its moorings ihis sacred ark of the common safety. It is not 
every trifling breeze, however it may be made to sob and howl 
in miitation of the tempest, by the auxiliary breath of the am- 
bitious, the timid, or the discontented, that can drive this gallant 
vessel, freighted with every thing that is dear to an American 
bosom, upon the rocks, or lay it a sheer hulk upon the ocean. 
I may perhaps mistake the flattering suggestions of hope, (the 
greatest of all flatterers, as we are told) for the conclusions of 
sober reason. Yet it is a pleasing error, if it be an error, and 
no man shall take it from nie. J will continue to ch«-rish the 
belief, in defiance of the public patronage given by the honour- 
able gentleman from New-York, with more than his ordinary 
zeal and solemnity, to deadly speculations, which, invoking the 
name of God to aid their faculties for mischief, strike at all 
establishments, that the union of these States is tormed to bear 
up against far greater shocks than, through all vicissitudes, it is 
ever likely to encounter I will continue to cherish the belief, 
that, although like all other human institutions it may for a 
season be disturbed, or suffer momentary eclipse by the transit 
across its disk of some malignant planet, it possesses a recupera- 
tive force, a redeeming energy in the hearts of the people, that 
will soon restore it to its wonted calm, and give it back its accus- 
tomed splendour On such a subject I will discard all hysterical 
apprehensions — I will deal in no sinister auguries — I will indulge 
in no hypocondriacai forebodings. I will look forward to the 
future with gay and cheerful hope ; and will make the prospect 
smile, in fancy at least, until overwhelming reality shall render 
it no longer possible. 

I have said thus nmch. Sir, in order that I may be understood 
as meeting the consritutional question as a mere question of 
interpretation, and as disdaining to press into the service of my 
argument upon it prophetic fears of any sort, however they may 
be countenanced by an avowal, formidable by reason of the 
high reputation of the individual by whom it has been hazarded, 
of sentiments the most destructive, which if not borrowed from. 



[ 577 ] 

are identical with, the worst visi(>ns of the politiral philosophy 
of France when all the elements of discord and misrule were let 
loose upon that devoted nation. I mean " the infinite perfecti- 
" bility of man and his institutions," and the resolution of every 
thing into a state of nature. I have another motive, which at 
the risk of being misconstrued, I will declare without reserve. 
With my convictions, and with my feelings, I never will consent 
to hold confederated America as bound together by a silken 
cord, which any instrument of mischief may sever, to the view 
of monarchical foreigners, who look with a jealous eye upon that 
glorious experiment which is now in progress amongst us in 
favour of republican freedom. Let them make such prophecies 
as they will, and nourish such feelings as they may : I will not 
contribute to the fulfilment of the former, nor minister to the 
gratification of the latter. 

Sir, it was but the other day that we were forbidden, (properly- 
forbidden I am sure, for the prohibition came from you,) to 
assume that there existed any intention to impose a prospective 
restraint on the domestic legislation of Missouri — a restraint to 
act upon it cotemporaneously with its origin as a State, and to 
continue adhesive to it through all the stages of its political ex- 
istence. We are now, however, permitted to know that it is 
determined by a sort of political surgery to amputate one of the 
limbs of its local sovereignty, and thus mangled and disparaged, 
and thus only, to receive it into the bosom of the constitution. 
It is now avowed that, while Maine is to be ushered into the 
Union with every possible demonstration of studious reverence 
on our part, and on hers with colours flying, and all the other 
graceful accompaniments of honourable triumph, this ill-con- 
ditioned upstart of the West, this obscure foundling of a wilder- 
ness that was but yesterday the hunting ground of the savage, is 
to find her way into the American family as she can, with an 
humiliating badge of remediless inferiority patched upon her 
garments, with the mark of recent, qualified manumission upon 
her, or rather with a brand upon her forehead to tell the story of 
her territorial vassalage, and to perpetuate the memory of her 
evil propensities. It is now avowed that, while the robust Dis- 
trict of Maine is to be seated by the side of her truly respectable 



[ 578 ] 

parent, co-ordinate in authority and honour, and is to be dandled 
into that power arid dijjnity of which she does not stand in need, 
but which undoubtedly she deserves, the more infantine and 
feeble Missouri is to be repelled with harshness, and forbidden to 
come at all, unless with the iron collar of servitude about her 
neck, instead of the civic crown of republican freedum upon her 
brows, and is to be doomed for ever to leading strings, unless 
she will exchange those hading strings for shackles. 

I am told that you have the power to establish this odious and 
revolting distinction, and I am referred for the proofs of that 
power to various parts of the constitution, but principally to 
that part of it which authorizes the admission of new States into 
the Union. I am myself of opinion that it is in that part only 
that the advocates for this restriction can, with any hope of suc- 
cess, apply for a license to impose it ; and that the efforts which 
have been made to find it in other portions of that instrument, 
are too desperate to require to be encountered. I shall however 
examine those oiher portions before I have done, lest it should 
be supposed by those who have relied upon them, that what I 
omit to answer I believe to be unanswerable 

The clause of the constitution wnich relates to the admission 
of new States is in these words : " The Congress may admit 
'' new States into this Uni<'n," &e., and the advocates for re- 
striction maintain that the use of the word " may" imports dis- 
cretion to admit or to reject ; and that in this discretion is 
wrapped up another — that of prescribing the tei-ms and con- 
ditions of admission in case you are willing to admit : (^ujus est 
dare ejus est disponere. I will not for the present inquire 
whether this involved discretion to dictate the terms of admission 
belongs to you or not. It is fit tiiat I should first look to the 
nature and extent of it. 

1 think I may assume that if such a power be any thing but 
nominal, it is much more than adequate to the present object — 
that it is a power of vast expansion, to which human sagacity 
can assign no reasonable limits — that it is a capacious reservoir 
of authority, from which you may take, in all time to come, as 
occasion may serve, the means of oppression as well as of bene- 
faction. I know that it professes at this moment to be the 



[ 579 ] 

chosen instrument of protecting mercy, and would win upon us 
by its benignant smiles : hut I know too it can fri)wn, and play 
the tyrant, if it be so disposed. Notwitlistanding the sciftness 
which it now assumes, and the care with which it conceals its 
giant proportions beneath the deceitful drapery of sentiment, 
when it next appears before you it may show itself with a sterner 
countenance and in more awfid dimensions. It is, to speak the 
truth, Sir, a power of colossal size — if indeed it be not an abuse 
of language to call it by the gentle name of a power. Sir, it is a 
wilderness of powers, of which fancy in her happiest mood is 
unable to perceive the far distant and shadowy boundary. 
Armed with such a power, with Religion in one hand and Phi- 
lanthropy in the other, and followed with a goodly train of 
public and private virtues, jou may achieve more conquests over 
sovereignties not your own than falls to the common lot of even 
uncommon ambition. By the aid of such a power, skilfully em- 
ployed, you may " bridge your way" over the Hellespont that 
separates State legislation from that of Congress ; and you may 
do so for pretty much the same purpose with which Xerxes 
once bridged his way across the Hellespont, that separates Asia 
from Europe, fie did s(t,in the language of Milton, " the liber- 
" ties of Greece to yoke." You may do so for the analogous pur- 
pose of subjugating and reducing the sovereignties of States, us 
your taste or convenience may suggest, and fashioning them to 
your imperial will. There are those in this House who appear 
to think, and I doubt not sincerely, that the particular restraint 
now under consideration is wise, and benevolent, and good : 
wise as respects the Union — good as respects Missouri — benevo- 
lent as respects the unhappy victims whom with a novel kind- 
ness it would incarcerate in the South, and bless by decay and 
extirpation. Let all such beware, lest in their desire for the 
effect which they believe the restriction will produce, they are 
too easily satisfied that they have the right to impose it. The 
moral beauty of the present purpose, or even its political recom- 
mendations, (whatever they may be,) can do nothing for a 
power like this, which claims to prescribe conditions ad libifum, 
and to be competent to this purpose, because it is competent to 
all. This restriction, if it be not smothered in its birth, will be 



[ 580 ] 

but a small part of the progeny of that prolific power. It teems 
with a mighty brood, of which this may be entitled to the dis- 
tinction of comeliness as well as of primogeniture. The rest 
may want the boasted loveliness of their predecessor, and be 
even uglier than '' Lapland witches." 

Perhaps, Sir, you will permit me to remind you that it is al- 
most always in company with those considerations that interest 
the heart in some way or other, that encroachment steals into the 
world. A bad purpose throws no veil over the licenses of pow- 
er. It leaves them to be seen as they are. It affords ih^m no pro- 
tection from the inquiring eye of jealousy. The danger is when 
a tremendous discretion like the present is attempted to be as- 
sumed, as on this occasion, in the names of Pity, of Religion, of 
National Honour and National Prosperity; when encroachment 
tricks itself out in the robes of Piety, or Humanity, or addresses 
itself to pride of country, with all its kindred passions and mo- 
tives. It is then that the guardians of the constitution are apt to 
slumber on their watch, or, if awake, to mistake for lawful rule 
some pernicious arrogation of power. 

I would not discourage authorized legislation upon those kind- 
ly> generous, and noble feelings wliich Providence has given to 
us for the best of purposes : but when power to act is under dis- 
cussion, I will not look to the end in view, lest I should become 
indifferent to the lawfulness of the means. Let us discard from 
this high constitutional question, all those extrinsic considerations 
which have been forced into its discussion. Let us endeavour to 
approach it with a philosophic impartiality of temper — with 
a sincere desire to ascertain the boundaries of our authority, and 
a determination to keep our wishes in subjection to our allegi- 
ance to the constitution. 

Slavery, we are told in many a pamphlet, memorial, and 
speech, with which the press has lately groaned, is a foul blot 
upon our otherwise immaculate reputation. Let this be con- 
ceded — yet you are no nearer than before to the conclusion that 
you possess power which may deal with other subjects as effec- 
tually as with this. Slavery, we are further told, with some pomp 
of metaphor, is a canker at the root of all that is excellent in 
this republican empire, a pestilent disease that is snatching the 



[ 581 ] 

youthful bloom from its cheek, priisrratia^ its honour and wither- 
ing its strength. Be it so — yet if you have pow r to medicine 
to it in the way proposed, and in virtue of the diploma which you 
claim, you have also power in the distribution of your political 
alexipharmics to present the deadliest drugs to ev^ry territory 
that would become a State, and bid it drink or remain a colony 
forever. Slavery, we are also told, is now " rolling onwjird with 
'•' a rapid tide towards the boundless regions of the West," threat- 
ening to doom them to sterility and sorrow, unelss some potent 
voice can say to it — thus far shalt thou go and no farther. Slave- 
ry engenders pride and indolence in him who commands, and 
inflicts intellectual and moral degradation on him who serves. 
Slavery, in fine, is unchristian and abominable. Sir, I shall not 
stop to deny that slavery is all this and more ; but I shall not 
think myself the less authorized to deny that it is for you to stay 
the course of this dark torrent, by opposing to it a mound raised 
up by the labours of this portentous discretion on the domain of 
others — a mound which you cannot erect but through the instru- 
mentality of a trespass of no ordinary kind — not the compara- 
tively irvnocent trespass that beats down a few blades of grass 
which the first kind sun or the next refreshing shower may cause 
to spring again — but that which levels with the ground the lord- 
liest trees of the forest, and claims immortality for the destruc- 
tion which it inflicts. 

I shall not, I am sure, be told that I exaggerate this power. It 
has been admitted here and elsewhere that I do not. But I want 
no such concession. It is manifest that as a discretionary power 
it is every thing or nothing — that its head is in the clouds, or that 
it is a mere figment of enthusiastic speculation — that it has no ex- 
istence, or that it is an alarming vortex ready to swallow up all 
such portions of the sovereignty of an infant State as you may 
think fit to cast into it as preparatory to the introduction into the 
union of the miserable residue. No man can contradict me 
when I say, that if you have this power, you may squeeze down 
a new-born sovereign State to the size of a pigmy, ami then faking 
it between finger and thumb, stick it into some nitch of the Union, 
and still continue by way of mockery to call it a State in the 
sense of the constitution. You may waste it to a shadow, and 

74 



[ 582 ] 

then introduce it into the society of flesh and blood an object of 
scorn and derision. You may sweat and reduce it to a thing of 
skin and bone, and then place the ominous skeleton beside the 
ruddy and healthful m«^rabers of the Union, that it may have lei- 
sure to mourn the lamentable difference between itself and its 
companions, to brood over its disastrous promotion, and to seek 
in justifiable discontent an opportunity for separation, and insur- 
rection, and rebellion. What may you not do by dexterity and 
perseverance with this terrific power ? You may give to a new 
State, in the form of terms which it cannot refuse, (as 1 shall 
show you hereafter,) a statute book of a thousand volumes — 
providing not fur ordinary cases only, but even for possibilities ; 
you may lay the yoke, no matter whether light or heavy, upon 
the necks of the latest posterity ; you may send this searching 
power into every hamlet for centuries to come, by laws enacted 
in the spirit of prophecy, and regulating all those dear relations 
of domestic concern which belong to local legislation, and which 
even local legislation touches with a delicate and sparing hand. 
This is the first inroad. But will it be the last .'' This provision 
is but a pioneer for others of a more desolating aspect. It is 
that fatal bridge of which Milton speaks, and when once firmly 
built, what shall hinder you to pass it when you please for the 
purpose of plundering power after power at the expense of new 
States, as you will still continue to call them, and raising up 
prospective codes irrevocable and immortal, which shall leave to 
those States the empty shadows of domestic sovereignty, and con- 
vert them into petty pageants, in themselves contemptible, but 
rendered infinitely more so by the contrast of their humble facul- 
ties with the proud and admitted pretensions of those who having 
doomed them to the inferiority of vassals, have condescended to 
take th' ni into tl.eir society and under their protection ? 

I shall be told, perhaps, that you can have no temptation to 
do all or any part of this, and, moreover, that you can do no- 
thi.tg of yourselves, or. in other words, without the concurrence 
ol the new State. The last of these suggestions I shall examine 
by and by. To the first I answer, that it is not incumbent upon 
me to prove that this discretion will be abused. It is en< ugh 
for me to prove the vastness of the power as an inducement to 



[ 583 ] 

make us pause upon it, and to inquire with attention whethet- 
there is any apartment in the constitution large enough to irive it 
entertainment. It is more than enough for me to show that vast 
as is this power, it is with reference to mere territories an irrt' 
sponsible power. Power is irresponsible when it acts upon those 
who are defenceless against it — who cannot check it, or contri- 
bute to check it, in its exercise — who can resist it only by force. 
The territory of Missouri has no check upon this power. It has 
no share in the government of the Union. In this body h has 
no representative. In the other House it has, by courtesy, an 
agent, who may remonstrate, but cannot votn. That such an 
irresponsible power is not likely to be abused, who will under- 
take to assert ? If it is not, " F.xperience is a cheat, and fact a 
" liar." The power which England claimed over the colonies was 
such a power, and it was abused — and hence the Revolution. 
Such a power is always perilous to those w\iO wield it, as well as 
to those on whom it is exerted. Oppression is but another name 
for irresponsible power, if History is to be trusted. 

The free spirit of our constitution and of our people, is no as- 
surance against the propension of unbridled power to abuse, when 
it acts upon colonial dependants rather than upon ourselves. 
Free States, as well as despots, have oppressed those whom they 
were bound to foster — and it is the nature of man that it should 
be so. The love of power, and the desire to display it when it 
can be done with impunity, is inherent in the human heart. Turn 
it out at the door, and it will in again at the window. Power is 
displayed in its fullest measure, and with a captivating dignity, by 
restraints and conditions. The pruritus leges ferendi is an uni- 
versal disease ; and conditions are laws as far as they go. The 
vanity of human wisdom, and the presumption of human reason, 
are proverbial. This vanity and this presumption are often 
neither reasonable nor wise. Humanity, too, sometimes plays 
fantastic tricks with power. Time, moreover, is fruitful in temp- 
tations to convert discretionary power to all sorts of purposes. 

Time, that withers the strength of man and " strews around him 
^' like autumnal leaves the ruins of his proudest monuments," 
produces great vicissitudes in modes of thinking -md feeling. It 
brings a long with it, in its progress, new circumstances — new 



[ 584 ] 

combinations and modifications of the old — generating new 
views, inutivi's, and caprices — new fanaticisms of endless variety 
— in short, new every thing. We ourselves are always changing — 
and what to-day we have but a small desire to attempt, to-morrow 
becomes the object of our passionate aspirations. 

There is such a thing as Enthusiasm, moral, religious, or poli- 
tical, or a compound of all three ; — and it is wonderful what it 
will attempt, and from what imperceptible beginnings it sometimes 
rises into a mighty agent. Rising from some obscure or unknown 
source, it first shows itself a petty rivulet, which scarcely mur- 
murs over the pebbles that obstruct its way — then it swells into 
a fierce torrent bearing all before it — and then again, like some 
mountain stream which occasional rains have preci})itated upon 
the valley, it sinks once more into a rivulet, and finally leaves 
its channel dry. Such a thing has happened. I do not say that 
it is now happening, li would not become me to say so. But 
if it should occur, wo to the unlucky territory that should be 
struggling to make its way into the Union at the moment when 
the opposing inundation was at its height, and at the same in- 
stant this wide Mediterranean of discretionary powers, which it 
seems is ours, should open up all its sluices, and with a consen- 
taneous rush, mingle with the turbid waters of the others ! 
***** #### 

" New States may be admitted by the Congress into this 
Union." It is objected that the word '' may" imports power, not 
obligation — a right to decide — a discretion to f^rant or refuse. 

To this it might be answered that power is duty on many oc- 
casions. But let it be conceded that it is discretionary. Wha 
consequence follows? A power to refuse, in a case like this, 
dois not necessarily involve a power to exact terms. V ou must 
look to the result vvhicli is the declared object of the power. 
Whether you will arrive at it, or not, may depend on your will ; 
but you cannot compromise with the result intended and professed. 

What then is the professed result ? To admit a Stale into 
this Union. 

What is that Union ? A confederation of States equal in 
sovereignty — capable of every thing which the constitution does- 
not forbid, or authorize Congress to forbid. It is an equal 



[ 585 ] 

Union, between parties equally sovereign. They were sove- 
reign, independently of the Union. The object of the Union 
was common protection for the exercise of already existing so- 
vereignty. The parties gave up a portion of that sovereignty to 
insure the remainder. As far as they gave it up by the com- 
mon compact they have ceased to be sovereign. The Union 
provides the means of defending the residue : and it is into that 
Union that a new State is to come. By acceding to it, the new 
State is placed on the same footing with the original States. It 
accedes for the same purpose, i. e. protection for its unsurren- 
dered sovereignty. If it comes in shorn of its heanis — crippled 
and disparaged beyond the original States, it is not into the 
original Union that it comes. For it is a different sort of Union. 
The first was Union inter pa^es: This is a Union between dis- 
parates — between giants and a dwarf — between power and fee- 
bleness — between full proportioned sovereignties and a miserable 
image of power — a thing which that very Union has shrunk and 
shrivelled from its just size, instead of preserving it in its true 
dimensions. 

It is into " this Union,*' i. e. the Union of the Federal Con- 
stitution, that you are to admit, or refuse to admit. You can 
admit into no other. You cannot make the Union, as to the new 
State, what it is not as to the old ; for then it is not this Union 
that you open for the entrance of a new party. If you make it 
enter into a new and additional compact, is it any longer the 
same Union ? 

We are told that admitting a State into the Union is a com- 
pact. Yes — but what sort of a compact ? A compact that it 
shall be a member of the Union, as the constitution has made it. 
You cannot new fashion it. Y'ou may make a compact to admit, 
but when admitted the original compact prevails. The Union is 
a compact, with a provision of political power and agents for the 
accomplishment of its objects. Vary that compact as to a new 
State — give new energy to that political power so as to make it 
act with more force upon a new State than upon the old — make 
the will of those agents more effectually the arbiter of the fate of 
a new State than of the old, and it may be confidently said that 
the new State has not entered into this Union, but into another 



[ 586 ] 

Union. How far the Union has been varied is another question. . 
But ihat it has. been varied is clear. 

If I am told that by the bill relative to Miss uri, you do not 
legislate upon a new State — I answer that yon do ; and I answer 
further that it is immaterial whether von do or not. But it is 
upon Missouri, as a State, that your terms and conditions are to 
act. Until Missouri is a State, the terms and conditions are 
nothing. You legislate in the shape of terms and conditions, 
prospectively — and you so legislate upon it that when it comes 
into the Union it is to be bound by a contract degrading; and 
diminishing its sovereignty, and is to be stripped of rights whith 
the original parties to the Union did not consent to abandon 
and which that Union (so far as depends upon it) lakes under 
its protection and guarantee. 

Is the right to hold slaves a right which Massachusetts enjoys ? 
If it is, Massachusetts is under this Union in a difffient character 
from Missouri. The compact of Union for it, is differf^nt from 
the sanje compact of I nion for Missouri. The power of Con- 
gress is different — every thing which depends upon the Union 
is, in that respect, different. 

But it is immaterial whether you legislate for Missouri as a 
State or not. The effect of your legislation is to bring it into 
the Union with a portion of its sovereignty taken away. 

But it is a State which \ou are to admit. What is a State in 
the sense ol the constitution ? It is not a State in the general — 
but a State as you find it in the constitution. A State, generally, 
is a body politic or independent political society of men. But 
the State which you are to admit must be more or less than this 
political entity. What must it be } Ask the constitution. It 
shows what it means by a State by reference to the parties to 
it. It must be such a State as Massachusetts, Virginia, and the 
other members of the American conJederacy — a State with full 
sovereignty except as the constitution restricts it. 

It is said that the word )nay necessarily implies the right of 
prescribing the terms of admission. Those who maintain this 
are aware that there are no express words (such as upon such 
terms and cmiditions us Congress shall think Jit) words which 
it was natural to expect to find in the constitution, if the effect 



[ 587 ] 

contended for were meant. They put it, therefore, on the word 
may, and on that alone. 

Give to that word all the force you please — what does it im- 
port ? That Congress is not bound to admit a new State into 
this Union. Be it so for are;ument's sake. Does it follow that 
when you consent to admit into this Union a new State you can 
make it less in sovereign power than the original parties to that 
Union — that you can make the Union as to it what it is not as 
to them — that you can fashion it to your liking by compelling it 
to purchase admission into an Union by sacrificing a portion of 
that power which it is the sole purpose of the Union to maintain 
in all the plenitude which the Union itself does not impair ? 
Does it follow that you can force upon it an additional compact 
not found in the compact of Union — that you can make it come 
into the Union less a State, m regard to sovereign^power, than its 
fellows in that Union — that you can cripple its legislative compe- 
tency, (beyond the constitution which is the pact of Union, to 
which you make it a party as if it had been originally a party to 
it,) by what you choose to call a condition, but which, whatever 
it may be called, brings the new government into the Union 
under new obligations to it, and with disparaged power to be 
protected by it. 

In a word — the whole amount of the argument on the other 
side, is — that you may refuse to admit a new State, and that 
therefore if you admit, you may prescribe the terms. 

The answer to that argument is — that even if you can refuse, 
you can prescribe no terms which are inconsistent with the act 
you ar« to do. You can prescribe no conditions which, if car- 
ried into effect, would make the new State less a sovereign State 
than, under the Union as it stands, it would be. You can pre- 
scribe no terms which will make the compact of Union between 
it and the original States essentially different from that compact 
among the original States. You may admit, or refuse to admit : 
but if you admit, you must admit a State in the sense of the 
constitution — a State with all such sovereignty as belongs to the 
original parties : and it must be into this Union that you are to 
admit it, not into a Union of your own dictating, formed out of 
the existing Union by qualifications and new compacts, altering 



I 



[ 588 ] 

its character and eO'ect, and making it fall short of its protecting 
energy in reference to the new State, whilst it acquires an energy 
of another sort — the energy of restraint and destruction. 

I have thus endeavoured to show, that even if you have a 
discretion to refuse to admit — you have no discretion, if 3'ou are 
willing to admit, to insist upon any terms that impair the sove- 
reignty of the admitted State as it would otherwise stand in the 
Union by the constitution which rece-ves it into its bosom. Fo 
admit or not, is for you to decide. Admission once conceded, it 
follows as a corollary that you must take the new State as an 
equal companion with its fellows — that you cannot recast or 
new model the Union pro hac vice — but that you must receive 
it into the actual Union, and recognize it as a parcener in the 
common inheritance, without any other shackles than the rest 
have, by the constitution, submitted to bear — without any other 
extinction of power than is the work of the constitution acting 
indifferently upon all. 

I may be told perhaps that the restriction, in this case, is the 
act of Missouri itself-— that your law is nothing without its con- 
sent, and derives its efficacy from that alone. 

I shall have a more suitable occasion to speak on this topic 
hereafter, when I come to consider the treaty which ceded Lou- 
isiana to the United States. But I will say a few words upon it 
now of a more general application than it will in that branch of 
the argument be necessary to use. 

A territory caiuiot surrender to Congress by anticipation, the 
whole, or a part, of the sovereign power, which, by the con- 
stitution of the Union, will belong to it when it becomes a 
State and a member of the Union. Its consent is, therefore, 
nothing. It is in no situation to make this surrender. It is 
under the government of Congress ; if it can barter away a part 
of its sovereignty, by anticipation, it can do so as to the whole. 
For where will you stop ? If it does not cease to be a State, in 
the sense of the constitution, with only a certain portion of sove- 
reign power, what other smaller portion will have that effect? 
If you depart from the standard of the constitution, i. e. the 
quantity of domestic sovereignty left in the first contracting 
States, and secured by the original compact of Union, where will 



[ 589 ] 

you get another standard ? Consent is no standard, — for con- 
sent may be gained to a surrender of all. 

No State or Territory, in order to become a State, can alienate or 
surrender any portion of its sovereignty to the Union, or to a sis- 
ter State, or to a foreign nation. It is under an incapacity to 
disqualify itself for all the purposes of government left to it in 
the constitution, by stripping itself of attributes which arise from 
the natural equality of States, and which the constitution recog- 
nizes, not only because it does ni»t deny them, but presumes them 
to remain as they exist by the law of nature and nations. Ine- 
quality in the sovereignty of States is unnatural, and repugnant 
to all the principles of that law. Hence we find it laid down by 
the text writers on public law, that " Nature has established a 
" perfect equality of rights between independent nations" — and 
that " Whatever the quality of a free sovereign nation gives to 
one, it gives to another."* The constitution of the United 
States proceeds upon the truth of this doctrine. It takes the States 
as its finds them, frke and sovereign alike by nature. It 
receives from them portions of their power for the general good, 
and provides for the exercise of it by orjjanized political bodies. 
It diminishes the individual sovereignty of each, and transfers^ 
what it subtracts, to the government which it creates : it takes 
from all alike, and leaves them relatively to each other equal in 
sovereign power. 

The honourable gentleman from New- York has put the consti- 
tutional argument altogether upon the clause relative to admis- 
sion of new States into the Union. He does not pretend that 
you can find the power to restrain, in any extent, elsewhere. It 
follows that it is not a particular power to impose this restriction, 
but a power to impose restrictions ad libitum. It is competent 
to this, because it is competent to every thing. But he denies 
that there can be any p.wer in man to hold in slavery his fellow- 
creature, and argues, therefore, that the prohibition is no restraint 
at all, since it does not interfere with the sovereign powers of 
Missouri. 

* VatUl, Droit des Gens, liv. 2, c. 3, s. 36. 

75 



[ 59a ] 

One of the most sif^nal errors with which the argument on the 
other side has abounded, is this of considering the proposed re- 
striction as if levelled at the introduction or establishment of 
slavery. And hence the vehement declamation, which among 
othtT things, has informed us that slavery originated in fraud or 
violence. 

The truth is, that the restriction has no relation, real or pre- 
tended, to the right of making slaves of those who are free, or 
of introducing slavery where it does not already exist. It applies 
tcf those who are admitted to be already slaves, andVbo (with 
their posterity) would continue to be slaves if they should re- 
main where they are at present ; and to a place where slavery al- 
ready exists by the local law. Their civil condition will not be 
altered by their removal from Virginia, or Carolina, to Missouri. 
They will not be more slaves than they now are. Their abode, 
indeed, will be different, but their bondage the same. Their 
numbers may possibly be augmented by the diffusion, and 1 
think they will. But this can only happen because their hard- 
ships will be mitigated, and their comforts increased. The 
checks to population, which exist in the older States will be di- 
minished Tlie restriction, therefore, does not prevent the esta- 
blishment of slavery, either with reference to persons or place ; 
but simply inhibits the removal from place to place (the law in 
each being the same) of a slave, or make his emancipation the con- 
sequence of that removal. It acts professedly merely on slavery 
as it exists, and thus acting restrains its present lawful effects. 
That slavery, like many other human institutions, originated in 
fraud or violence, may be conceded : but, however it originated, 
it is established among us, and no man seeks a further establish- 
ment of it by new importations of freemen to be converted into 
slaves. On the contrary, all are anxious to mitigate its evils, by 
all the means within the reach of the appropriate authority, the 
domestic It^gislatures of the different States. 

It can be nothing to the purpose of this argument, therefore, 
as the gentlemen themselves have shaped it, to inquire what was 
the origin of slavery. What is it now, and who are they that 
endeavour to innovate upon what it now is, (the advocates of this 
restriction who desire change by unconstitutional means, or its 



[ 591 ] 

opponents who desire to leave the whole matter to local regula- 
tion,) are the only questions worthy of attention. 

Sir, if we too closel}' look to the rise and progress of long 
sanctioned establishments and unquestioned rights, we may dis- 
cover other subjects than that of slavery, with which fraud and 
violence may claim a fearful connexion, and over which it may 
^e our interest to throw the mantle of oblivion. What was the 
settlement of our ancestors in this country but an invasion of the 
rights of the Barbarians who inhabited it? That settlenient, 
with slight exceptions, was effected by the slaughter of those 
who did no more than defend their native land against the intru- 
ders of Europe, or by unequal compacts and purchases, in which 
feebleness and ignorance had to deal with power and cunning. 
The savages who once built their huts where this proud Capitol, 
rising from its recent ashes, exemplifies the sovereignty of the 
American people, were swept away by the injustice of our fa- 
thers, and their domain usurped by force, or obtained by arti- 
fices yet more criminal. Our continent was full of those abori- 
ginal inhabitants. Where are they or their descendants ? Either 
" with years beyond the flood," or driven back by the swelling 
tide of our population from the borders of the Atlantic to the 
deserts of the West. You follow still the miserable remnants, 
and make contracts with them that seal their ruin. You pui'- 
chase their lands, of which they know not the value, in order 
that you may sell them to advantage, increase your treasure, and 
enlarge your empire. Yet further — you pursue as they retire ; 
and they must continue to retire until the Pacific shall stay their 
retreat, and compel them to pass away as a dream. Will you re- 
cur to those scenes of various iniquity for any other purpose 
than to regret and lament ihem ? Will you pry into them with 
a view to shake and impair your rights of property and dominion ? 
But the broad denial of the sovereign right of Missouri, if it 
shall become a sovereign State, to recognize slavery by its laws, 
is rested upon a variety of grounds, all of wnich I will examine. 
It is an extraordinary fact, that they who urge this denial with 
such ardent zeal, stop short of it in their conduct. There are now 
slaves in Missouri whom they do not insist upon delivering from : 

their chains. Yet if it is incompetent to sovereign power to yr 



[ 592 ] 

continue slavery in Missouri, in respect of slaves who may yet 
be carried thither, show me the power that can continue it in re- 
spect of slaves who are there already. Missouri is out of the 
old limits of the Union, and beyond those limits, it is said, we 
can give no countenance to slavery, if we can countenance or 
tolerate it any where. It is plain, that there can be no slaves 
beyond the Mississippi at this moment, but in virtue of some pow- 
er to make or keep them so. What sort of power was it that 
has made or kept them so .-' Sovereic^n power it could not be, ac- 
cording to the honourable gentlemen from Pennsylvania and 
New Hampshire :* and if sovereign power is unequal to such a 
purpose, less than sovereign power is yet more unequal to it. 
The laws of Spain and France could do nothing —the laws of 
the territorial government of Missouri could do nothing towards 
such a result, if it be a result which no laws, in other words, no 
sovereignly, could accomplish. The treaty of 1803 could do no 
more, in this view, than the laws of France, or Spain, or the ter- 
ritorial government of Missouri. A treaty is an act of sove- 
reign power, taking the shape of a compact between the parties 
to it ; and that which sovereign power cannot reach at all, it can- 
not reach by a treaty. Those who are now held in bondage, 
therefore, in Missouri, and their issue, are entitled to be free, 
if there be any truth in the doctrine of the honourable len- 
tlemen ; and if the proposed restriction leaves all such in 
slavery, it thus discredits the very foundation on which it re- 
poses. To be inconsistent is the fate of false principles — but 
this inconsistency is the more to be remarked, since it cannot be 
referred to mere considerations of policy, without admitting that 
such considerations may be preferred (without a crime) to what is 
deemed a paramount and indispensible duty. 

It is here too, that I must be permitted to observe, that the ho- 
nomable gentlemen have taken great pains to show that this re- 
striction is a mere work of supererogation by the principal argu- 
ment on which they rest the proof of its propriety. Missouri, 
it is said, can have no power to do what the restriction would 
prevent. It would be void, therefore, without the restriction. 

*!Mr. Roberts, Mr. Lowrie, and Mr. Morril. 



[ 593 ] 

Why then, I ask, is the restriction insisted upon ? Restraint im- 
plies th U there is something to be restrainf'd : But the eentle- 
mtii justify the restraint by showing that there is notbine upon 
which it can operate ! They demonstrate the wisdom and ne- 
cessity of restraint, by demonstratina; that with or without re- 
^raint, the subject is in the same predicament. This is to combat 
with a man of straw, and to put fetters upon a shadow. 

The gentlemen must, therefore, abandon either their doctrine 
or their restriction — their argument or their object — for they are 
directly in conflict, and reciprocally destroy each other. It is 
evident, that they will not abandon their object, and of course, 
I must believe, that they hold their argument in as little real esti. 
mation as I myself do. The gentlemen can scarcely be sincere 
believers in their own principle. They have apprehensionsj 
which they endeavour to conceal, that Missouri, as a State, will 
have power to continue slavery within its limits ; and, if they 
will not be offended, I will venture to compare them, in this par- 
ticular, with the duelist in Shi^-ridan's comedy of the Rivals, who 
affecting to have no fear whatever of his adversary, is, never- 
theless, careful to admonish Sir Lucius to hold him fast. 

Let us take it for granted, however, that they are in earnest in 
their doctrine, and that it is very necessary to impose what they 
prove to be an unnecessary restraint : how do they support that 
doctrine? 

The honourable gentleman on the other side* has told us as a 
proof of his great position, (that man cannot enslave his fellow 
man, in which is implied that all laws upholding slavery are ab- 
solute nullities,) that the nations of antiquity as well as of modern 
times have concurred in laying down that position as incontro- 
vertible. 

He refers us in the first place to the Roman law, in which he 
finds it laid down as a maxim : Jure naturali omnes homines nb 
initio liheri nascebanfur. From the manner in which this 
maxim was pressed upon us, it would not readily have been con- 
jectured that the honourable gentleman who used it had borrowed 
it from a slave-holding empire, and still less from a book of the 

' Mr. Kinff. 



[ 594 ] 

Institutes of Justinian, which treats of slavery, and justifies, and 
regulates it. Had he given us the context, we should have had 
the modifications of which the abstract doctrine was in the judg- 
ment of the Roman law susceptible. We should have had 
an explanation of the competency of that law, to convert, whether 
justly or unjustly, freedom into servitude, and to maintain the 
right of a master to the service and obedience of his slave. 

The honourable gentleman might also have gone to Greece for 
a similar maxim and a similar commentary, speculative and 
practical. 

He next refers us to Magna Charta. I am somewhat familiar 
with Magna Charta, and I am confident that it contains no such 
maxim as the honourable gentleman thinks he has discovered in 
it. The great charter was extorted from John, and his feeble 
son and successor, by haughty slave-holding barons, who thought 
only of themselves and the commons of England, (then incon- 
siderable,) whom they wished to enlist in their efforts against the 
crown. There is not in it a single word which condemns civil 
slavery. Freemen only are the objects of its protecting care. 
'^ NuUus liber homo," is its phraseology. The serfs, who were 
chained to the soil — the villeins regardant and in gross, were 
left as it found them. All England was then full of slaves, 
whose posterity would by law remain slaves as with us, except 
only that the issue followed the condition of the father instead of 
the mother. The rule was " Partus sequitur patrem" — a rule 
more favourable, undoubtedly, from the very precariousness of 
its application, to the gradual extinction of slavery, than ours, 
which has been drawn from the Roman law, and is of sure and 
unavoidable effect. 

Still less has the Petition of Right, presented to Charles I., 
by the Long Parliament, to do with the subject of civil slavery. 
It looked merely, as Magna Charta had not done before it, to 
the freemen of England — and sought only to protect them 
against royal prerogative and the encroaching spirit of the 
Stewarts. 

As to the Bill of Rights, enacted by the Convention Parlia- 
ment of 1688, it is almost a duplicate of the Petition of Right, 
and arose out of the recollection of that political tyranny from 



[ 595 ] 

which the nation had just escaped, and the recurrence of which 
it was intended to prevent. It contains no abstract principles. 
It deals only with practical checks upon the power of the mon- 
arch, and in safeguards for institutions essential to the preserva- 
tion of the public liberty. That it was not designed to analthe- 
matize civil slavery may be taken for granted, since at that 
epoch and long afterwards the 1 nglish government inundated its 
foreign plantations with slaves, and supplied other nations with 
them as merchandise, under the sanction of solemn treaties nego- 
ciaied for that pu' pose. And here 1 cannot forbear to remark 
that we owe it to that same government, when it stood towards 
us in the relation of parent to child, that involuntary servitude 
exists in our land, and that we are now deliberating whether the 
prerogative of correcting its evils belongs to the national or the 
State governments. In the early periods of our colonial history 
every thing was done by the mother country to encourage the 
importation of slaves into North America, and the measures 
which were adopted by the Colonial Assemblies to prohibit it, 
were uniformly negatived by the crown. It is not there- 
fore our fault, nor the fault of our ancestors, that this calamity 
has been entailed upon us ; and notwithstanding the ostentation 
with which the loitering abolition of the slave trade by the 
British parliament has been vaunted, the principal consideration 
which at last reconciled it to that measure was, that by suitable 
care, the slave population in their West India islands (already 
fully stocked) might be kept up and even increased without the 
aid of importation. In a word, it was cold calculations of inte- 
rest, and not the suggestions of humanity, or a respect for the 
philanthropic principles of Mr. Wilberforce which produced 
their tardy abandonment of that abominable traffic. 

Of the Declaration of our Independence, which has also been 
quoted in support of the perilous doctrines now urged upon us, 
I need not now speak at large. I have shown on a former oc- 
casion how idle it is to rely upon that instrument for such a 
purpose, and I will not fatigue you by mere repetition. The 
self-evident truths announced in the Declaration of Independence 
are not truths at all, if taken literally ; and the practical conclu- 
sions contained in the same passage of that Declaration prove 
that they were neyer desigoed to be so received. 



[ 596 ] 

The Articles of Confederation contain nothing on the subject ; 
whilst the actual Constitution recoj^nizes the le^al existHitre of 
slavery by various provisions. The power of prohibiting the 
slave trade is involved in that of regulating commerce, but this 
is coupled with an express inhibition to the t^xercise oJ it for 
twenty years. How then can that Constitution which expressly 
permits the importation of slaves, authorize the national govern- 
ment to set on foot a crusade against slavery ? 

The clause respecting fugitive slaves is affirmative and active ill 
its effects. It is a direct sanction and positive protection of the 
right of the master to the services of his slave as derived under the 
local laws of the States. The phraseology in which it is wrapped 
up still leaves the intention clear, and the words, " persons held 
to '' service or labour in one State under the laws thereof," have 
always been interpreted to extend to the case of slaves, in the 
various acts of Congress which have been passed to give effi- 
cacy to the provision, and in the judicial application «>f those 
laws. So also in the clause prescribing the ratio of representa- 
tion — the phrase, " three fifths of all other persons," is equivalent 
to slaves, «)r it means nothing. And yet we are told that those 
who are acting under a constitution which sanctions the exist- 
ence of slavery in those States which choose to tolerate it, are 
at liberty to hold that no law can sanction its existence ! 

It is idle to make the rightfulness of an act the measure of 
sovereign power. The distinction between sovereign power and 
the moral right to exercise it, has always been recognized. All 
political power may be abused, but is it to stop where abuse may 
begin ? The power of declaring war is a power of vast capacity 
for mischief, and capable of inflicting the most wide-spread deso- 
lation. But it is given to Congress without stint and without 
measure Is a citizen, or are the courts of justice to inquire 
whether that, or any other law, is just, before they obey or exe- 
cute it ? And are there any degrees of injustice which will 
withdraw from sovereign power the capacity of making a given 
law? 

But sovereignty is said to be deputed power. Deputed — by 
whom ? By the People, because the power is theirs. And if it 
be theirs, does not the restriction take it away ? Examine the 
Constitution of the Union, and it will be seen that the People of 



[ 597 ] 

the States are regarded as well as the States themselves. The 
constitution whs made by the People, and ratified by tlie People. 

Is it fit, then, to hold that all the sovereignty of a State is in the 
government of the State ? So much is there as the People grant : 
and the People can take it away, or give more, or new model 
what they have already granted. It is this right which the pro- 
posed restriction takes from iVlissouri. You give them an immor- 
tal constitution, depending on your will, not on theirs. The 
People and iheir posterity are to b<" hound for ever by this re- 
striction ; and upon the same principle, any other restriction may 
be imposed. Wher*^ then is their power to change the constitu- 
/tion, and to devolve new sovereignty upon the State government ? 
You limit their sovereign rapacity to do it ; and when you talk of 
a State, you mean the People as well as the Government. The 
People are the source of all power — you dry up that source. 
They are the reservoir — you take out of it what suits you. 

It is said that this government is a government of deputed pow- 
ers. So is every government — and what power is not deputed 
remains. But the people of the United States can give it more 
if they please, as the people of each State can do in respect to its 
own government. And here it is well to remember that this is 
a government of enumerated, as well as deputed powers ; and to 
examine the clause as to the admission of new States, with that 
principle in view. Now assume that it is a part of the sovereign 
power of the people of Missouri to continue slavery, and to de- 
volve that power upon its government — and then to take it away 
—and then to give it again. The government is their creature — 
the means of exercising their sovereignty, and they can vary 
those means at their pleasure. Independently of the Union, 
their power would be unlimited. By coming into the Union, 
they part with some of it, and are thus less sovereign. 

Let us then see whether they part with this power. 

If they have parted with this portion of sovereign power, it 
must be under that clause of the national constitution which gives 
to Congres.<} " power to admit new States into this Union." And 
it is said that this necessarily implies the authority of prescribing 
the conditions, upon which such new States shall be admitted. 
This has been put into the form of a syllogism which is thus stated : 

76 



[ 598 ] 

Major. Every universal proposition includes all the means^ 
nianiier,,and terms of the act to which it relates. 

Minor. But this is a universal proposition. 

Conclusion. Therefore, the means, manner, and terras are in- 
volved in it. 

But this syllogism is fallacious, and any thing else may be 
proved by it, by assuming one of its members which involves 
the conclusion. The minor is a mere postulate. 

Take it in this way : 

Major. None but a universal proposition includes in itself the 
terms and conditions of the act to be done. 

Minor. But this is not such a universal proposition. 

Conclusion. Therefore, it does not contain in itself the terms 
and conditions of the act. 

In both cases the minor is a gratuitous postulate. 

But I deny that a universal proposition as to a specific act, in- 
volves the terms and conditions of that act, so as to vary it and 
substitute another and a different act in its place. The proposition 
contained in the clause is universal in one sense only. It is par- 
ticular in another. It is universal as to the power to admit 
or refuse. It is particular as to the being or thing to be ad- 
mitted, and the compact by which it is to be admitted. The 
sophistry consists in extending the universal part of the propo- 
sition in such a manner as to make out of it another universal 
proposition. It consists in confounding the right to produce or 
to refuse to produce a certain defined effect, with a right to pro- 
duce a different effect by refusing otherwise to produce any ef- 
fect at ill. It makes the actual right the instrument of obtain- 
ing another right with which the actual right is incompatible. It 
makes, in a word, lawful power the instrument of unlawful usur- 
pation. The result is kept out of sight by this mode of reason- 
ing. The discretion to decline that result, which is called a uni- 
versal proposition, is singly obtruded upon us. But in order to 
reason correctly, you must keep in view the defined result, as well 
as the discretion to produce or to decline to produce it. The re- 
sult is the particular part of the proposition ; therefore, the dis- 
cretion to produce or decline it, is the universal part of it. But 
because the last is found to be universal, it is taken for granted 



[ 569 ] 

that t\ie first is also universal. This is a sophism too manifest 
to impose. 

But discarding the machinery of syllogisms as unfit for such a 
discussion as this, let us look at the clause with a view of inter- 
preting it by the rules of sound logic and common sense. 

The power is " to admit new States into this Union ;" and it 
may be safely conceded that here is discretion to admit or refuse. 
The question is, what must we do if we do any thing ? What 
must we admit, and into what ? The answer is a State — and 
into this Union. 

The distinction between federal rights, and local tights, is an 
idle distinction. Because the new State acquires federal rights, 
it is not, therefore, in this Union. The Union is a compact ; and 
is it an equal party to that compact, because it has equal federal 
rights ? •"" 

How is the Union formed? By equal co'ntributions of power. 
Make one member sacrifice more than other, and it becomes un- 
equal. The compact is of two parts, 

1. The thing obtained — federal rights. 

2. The price paid — local sovereignty. 

You may disturb the balance of the Union, either by diminishing 
the thing acquired, or increasing the sacrifice paid. 

What were the purposes of coming into the Union among the 
original States ? The States were originally sovereign without 
limit, as to foreign and domestic concerns. But being incapable 
of protecting themselves singly, they entered into the Union to de- 
fend themselves against foreign violence. The domestic concerns 
of the people were not, in general, to be acted on by it. The se- 
curity of the power of managing them by domestic legislature, 
is one of the great objects of the Union. The Union is a meanSy 
not an end. By requiring greater .sacrifices of domestic power, 
the end is sacrificed to the means. Suppose the surrender of all, 
or nearly all, the domestic powers of legislation were required : 
the means would there have swallowed up the end. 

The argument that the compact may be enforced, shows that 
the federal predicament is changed. The power of the Union 
not only acts on perscms or citizens, but on the faculty of the 
government, and restrains it in a way which the constitution no 



[ 600 ] 

where authorizes. This new obligation takes away a right which 
is expressl}' " reserved to the people or the States," since it is no 
where granted to the government of the Union. You cannot do 
indirectly what you cannot do directly. It is said that this Union 
is competiu to make compacts. Who doubts it ? But can you 
ni ike this compact ? 1 insist that you cannot make it, because 
it is repMgnantto the thint; to be done. 

The effect ot such a compact would be to produce that ine- 
quality in the Union, to which the constitution, in all its provisions, 
is adverse. Every thing in it looks to equality among the mem- 
bers of the Union. Under it, you cannot produce inequality. 
Nor can you get beforehand of the constitution, and do it by an- 
ticipation. Wail until a State is in the Union, and you cannot 
do it : yet it is only upon the State in the Union that what you do 
begins to act. 

* ** * * * # * * 

But it seems, that although the proposed restriction may not be 
justified by the clause of the constitution which gives power to 
admit new Stales into the Union, separately considered, there 
aie other parts of the constitution which combined with that 
clause will warrant it. And first we are informed that there is a 
clause in this instrument which declares that Congress shall gua- 
rantee to every State a republican form of government ; that 
slavery and such a form of government are incompatible ; and 
finally, as a conclusion Irom these premises, that Congress not 
only have a right, but are bound to exclude slavery from a new 
St'ite. Here again. Sir, there is an edifying inconsistency be- 
tween the argument and the measure which it professes to vindi- 
cate. By the argument it is maintained that Missouri cannot 
have a republican form of government, and at the same time to- 
lerate negro slavery. By the measure it is admitted that Mis- 
souri may tolerate slavery, as to persons already in bondage there, 
and be nevertheless fit to be received into the Union. What sort 
of constitutional mandate is this which can thus be made to bend, 
and truckle, and compromise as if it were a simple rule of expe- 
diency that might admit of exceptions upon motives of counter- 
vailing expediency. There can be no such pliancy in the peremp- 
tory provisions of the constitution. They cannot be obeyed by 



[ 601 ] 

moieties and violated in the same ratio. They must be followed 
out to their full extent, or treated with that decent neglect which 
has at least the merit of forbearing to render contumacy obtru- 
sive by an ostentatious display of the very duty which we in 
part abandon. If the decnlogue could be observed in this casuisti- 
cal manner, we might be grievous sinners, and yet be liable to no 
reproach. We might persist in all our habitual irregularities, 
and still be spotless. We might, for example, continue to covet 
our neighbours' goods, provided they were the same neighbours 
whose goods we had before coveted — and so of all the other 
Gommandments. 

Will the gentlemen tell us that it is the quantity of slaves, not 
the quality of slavery, which takes from a government the repub- 
lican form? Will they tell us (for they have not yet told us) 
that there are constitutional grounds (to say nothing of common 
sense,) upon which the slavery which now exists in Missouri may 
be reconciled with a republican form of government, while any 
addition to the number of its slaves (the quality of slavery re- 
maining the same) from the other States, will be repugnant to 
that form, and metamorphose it into some non-descript govern- 
ment disowned by the constitution ? They cannot have recourse 
to the treaty of 1803 for such a distinction, since independently 
of what I have before observed on that head, the gentlemen have 
contended that the treaty has nothing to do with the matter. 
They have cut themselves off from all chance of a convenient 
distinction in or out of that treaty, by insisting that slavery be- 
yond the old United States is rejected by the constitution, and 
by the law of God as discoverable by the aid of either reason or 
revelation ; and moreover that the treaty does not include the 
case, and if it did could not make it better. They have therefore 
completely discredited their own theory by their own practice, 
and left us no theory worthy of being seriously controverted. 
This peculiarity in reasoning of giving out a universal principle, 
and coupling with it a practical concession that it is wholly falla- 
cious, has indeed run through the greater part of the arguments 
on the other side ; but it is not, as I think, the more imposing 
on that account, or the less liable to the criticism which I have 
here bestowed upon it. 



[ 602 ] 

There is a remarkable inaccuniry on this branch of the subject 
into which the gentlemen have fallen, and to which 1 will give a 
moment's attention without laying unnecessary stress upon it. 
The government of a new State, as well as of an old State, must, 
I agree, be republican in its form. But it has not been very 
clearly explained what the laws which such a government may 
enact can have to do with its form. The form of the govern- 
ment is material only as it furnishes a security that those laws 
will protect and promote the public happiness, and be made in a 
republican spirit. ( he people being, in such a government, the 
fountain of all power, and their servants being periodically re- 
sponsible to them for its exercise, the constitution of the Union 
takes for granted, (except so far as it imposes limitations,) that 
every such exercise will be just and salutary. The introduction 
or continuance of civil slavery is manifestly the mere result of 
the power of making laws. It does not in any degree enter into 
the form of the government. It presupposes that form already 
settled, and takes its rise not from the particular frame of the 
governjnent, but from the general power which every govern- 
ment involves. Make the goveVnment what you will in its or- 
ganization and in the distribution of its authorities, the introduc- 
tion or continuance of involuntary servitude by the legislative 
power which it has created can have no influence on its pre- 
established form, whether monarchical, aristrocratical, or repub- 
lican. The form of government is still one thirig, and the law, 
being a simple exertion of the ordinary faculty of legislation by 
those to whom that form of government has entrusted it, another. 
The gentlemen, however, identify an act of legislation sanction- 
ing involuntary servitude with the form of government itself, and 
then assure us that the last is changed retroactively by the first, 
and is no longer republican ! 

But let us proceed to take a rapid glance at the reasons which 
have been assigned for this notion that involuntary servitude and 
a republican form of government are perfect antipathies. The 
gentleman from New-Hampshire* has defined a republican 
government to be that in which all the men participate in its 

* Mr. Morril. 




[ 603 ] ^ 

power and privileges : from wh(^nce it follows that where there 
are slaves, it can have no existence. \ definition is no proof, 
however, and even if it be dignified (as I think it was) with the 
name of a maxim, the matter is not much mended. It is Lord 
Bacon who says " that nothing is so easily made as a maxim ;'' 
and certainly a definition is manufactured with equal facility. 
A political maxim is the work of induction, and cannot stand 
against experience, or stand on any thing but experience. But 
this maxim, or definition, or whatever else it may be, sets fact at 
defiance. If you go back to antiquity, you will obtain no coun- 
tenance for this hypothesis ; and if you look at home you will 
gain still less. I have read that Sparta, and Rome, and Athens, 
and many others of the ancient family, were Republics. They 
were so in form undoubtedly — the last approaching nearer to a 
perfect Democracy than any other government which has yet 
been known in the world. Judging of them also by their fruits, 
they were of the highest order of Republics. Sparta could 
scarcely be any other than a Republic, when a Spartan matron 
could sa}' to her son just marching to battle. Return victori- 
ous, OR RETURN NO MORE. It was the uDConquerable spirit of 
Liberty, nurtured by Republican habits and institutions, that 
illustrated the pass of Thermopylae. Yet slavery was not only 
tolerated in Sparta, but was established by one of the funda- 
mental laws of Lycurgus, having for its object the encouragement 
of that very spirit. Attica was full of slaves — yet the love of 
liberty was its characteristic. What else was it that foiled the 
whole power of Persia at Marathon and Salamis ? What other 
soil than that which the genial Sun of Republican freedom illu- 
minated and warmed, could have produced such men as Leo- 
nidas and Miltiades, Themistocles and Epaminondas ? Of 
Rome it would be superfluous to speak at large. It is sufficient 
to name the mighty mistress of the world, before Sylla gave the 
first stab to her liberties and the great dictator accomplished 
their final ruin, to be reminded of the practicability of union be- 
tween civil slavery and an ardent love of liberty cherished by 
republican establishments. 

If we return home for instruction upon this point, we perceive 
that same union exemplified in many a State, in which " Liberty 



[ 604 ] 

" has a temple in every house, an altar in every heart," while 
involuntary servitude is seen in every direction. Is it denied 
that those States possess a republican form of government ? If 
it is, why does our power of correction sleep ? Why is the 
constitutional guaranty suffered to be inactive ? Why am I 
permitted to fatigue you, as the representative of a slave- 
holding St^ite with the discussion of the nugce cunor(S (for so 
I think them) that have been forced into this debate contrary 
to all the remonstrances of taste and prudence? Do gentle- 
men perceive the consequences to whi< h their arguments must 
lead if they are of any value ? Do they reflect that they lead 
to emancipation in the old United States — or to an exclu- 
sion of Delaware, Maryland, and all the South, and a great 
portion of the West from the Union ? My honourable friend 
from Virginia has no business here, if this disorganizing creed 
be any thing but the production of a heated brain. The State 
to which I belong, must "perform a lustratit»n" — must purge and 
purify herself from the feculence of civil slavery, and emulate 
the States of the north in their zeal for throwing down the 
gloomy idol which we are said to worship, before her senators 
can have any title to appear in this hijih assembly. It will be 
in vain to urge that the old United States are exce[»tions to the 
rule — or rather (as the gentlemen express it,) that they have no 
disposition to apply the rule to them. There can be no excep- 
tions, by implication only, to such a rule ; and expressions which 
justify the exemption of the old States by inference, will justify 
the like exemption of Missouri, unless they point exclusively to 
them, as I have shown they do not. The guarded manner, loo, 
in which some of the gentlemen have occasionally expressed 
themselves on this subject, is somewhat alarming. They have no 
disposition to meddle with slavery in the old United States. Per- 
haps not — but who shall answer for their successors ? Who 
shall furnisli a pledge that the principle once engrafted into the 
constitution, will not grow, and spread, and fructify, and over- 
shadow the whole land ? It is the natural office of such a prin- 
ciple to wrestle with slavery, wheresoever it finds it. !\ew 
States, colonized by the apostles of this principle, will enable it 
to set on foot a fanatical crusade against all who still continue to 



[ 605 ] 

tolerate it, although no practicable means are pointed out by 
which they can get rid of it consistently with their own safety. 
At an> rate, a present forbearing' disposition, in a few or in many, 
is not a security upon which much reliance can be placed upon a 
subject as to which so many selfish interests and ardent feelings 
are connected with the cold calcuhitions of po'icy. Admitting 
however, that the old United States are in no danger from this 
principle — why is it so? There can be no other answer (which 
these zealous enemies of slaveiy can use) than that the constitu- 
tion recognizes slavery as existing or capable of existing in those 
States The constitution, then, admits that slavery and a repub- 
lican form of government are not incongruous. It associates and 
binds them up together, and repudiates this wild imagination which 
the gentlemen have pressed upon us with such an air of t\ iumph. 
But the constitution does more, as I have heretofore proved. It 
concedes that slavery may exist in a new State, as well as in an 
old one — since the language in which it recognizes slavery com- 
prehends new States as well as actual. I trust then that I shall 
be forgiven if I suggest, that no eccentricity in argument can be 
more trying to human patience, than a formal assertion tha. a 
constitution, to which slave-holding States were the most nume- 
rous parties, in which slaves are treated as property as well as 
persons, and provision is made for the security of that property, 
and even for an augmentation of it, by a temporary importation 
from Africa, a clause commanding Congress to guarantee a 
republican form of government to those very States, as well as to 
others, authorizes you to determine that slavery and a republican 
form of government cannot co-exist. 

But if a republican form of government is that in which all the 
men have a share in the public power, the slave-holding States 
will not alone retire from the Union. The constitutions of some 
of the other States do not sanction universal sQffrage, or universal 
eligibility. They require citizenship, and age, and a certain 
amount of property, to give a title to vote or to be voted for ; 
and they who have not those qualifications are just as much dis- 
franchised, with regard to the government and its power, as if 
they were slaves. They have civil rights indeed (and so have 
slaves in a less degree ;) but they have no share in the govern- 

77 



[ 606 ] 

nient. Their province is to obey the laws, not to assist in making 
them. All such States must therefore be forisfanTJliated with 
Virginia and the rest, or chanjre their system : For the constitu- 
tion being absolutely silent on those subjects, will afford ihem no 
protection. The Union might thus be reduced Irom an Union 
to an unit. Who does not see that such conclusions flow from 
false notions — that the true theory of a republican government is 
mistaken — and that in such a government, rights political and 
civil, may be;qualified by the fundamental law, upon such induce- 
ments as the freemen of the country deem sufficient ? That civil 
rights may be qualified as well as political, is proved by a thou- 
sand examples. iMinors, resident aliens, who are in a course 
of naturalization — the other sex, whether maids, or wives, or 
widows, furnish sufficient practical proofs of this. 

Again — if we are to entertain these hopeful abstractions, and 
to res(»lve all establishments into their imaginary elements in 
ord» r to recast them upon some Utopian plan, and if it be 
true that all the men in a republican government must help to 
wield its power, and be equal in rights, 1 beg leave to ask the 
honourable gentleman from New-Hampshire — and why not all 
the women ? They too are God's creatures, and not only very 
fair but very rational creatures ; ami our great ancestor, if we are 
to give credit to Milton, accounted them the " wisest, virtousest, 
" discreetest, best ;" although to say the truth he had but one 
specimen from which to draw his conclusion, and possibly if he 
had had more, would not have drawn it at all. They have, 
moreover, acknowledged civil rights in abundance, and upon 
abstract principles more than their masculine rulers allow them 
in fact, "^ome monarchies, too, do not exclude them from the 
throne. We have all read of I lizabeth of England, of Catharine 
of Russia, of Semiramis, and Zenobia, and a long list of royal 
and imperial dames, about as good as an equal list of royal and 
imperial lords. Why is it that their exclusion from the power of 
a popular government is not destructive of its republi< an charac- 
ter ? I do not address this question to the honourable gentle- 
man's gallaniry, but to his abstraction, and his theories, and his 
notions of the infinite perfectibility of human institutions, bor- 
rowed horn Godwin and the turbulent philosophers of France. 



[ 607 ] 

For my own part, Sir, if I may have leave to say so much in 
the presence nf this mixed uncommon audieace, i confess I am 
no friend to female government, unless indeed it be that which 
reposes on gentleness, and modesty, and virtue, and Jei..inine 
grace and delicacy--and how powerful a government that is, we 
have all of us, as I suspect, at some time or other experienced ! 
But if the ultra republican doctiines which have now been 
broached should ever gain ground among us, 1 should n^t be 
surprized if some romantic reformer, treading in the footsteps of 
Mrs. Wolstoncraft, should propose to repeal our republican law 
salique, and claim for our wives and daughters a full participa- 
tion in political power, and to add to it that domestic power, 
which in some families, as I have heard, is as absolute and un- 
republican as any power can be, 

I have thus far allowed the honourable gentlemen to avail 
themselves of thtir assumption that the constitutional command 
to guarantee to the States a republican form of government, gives 
power to coerce those States in the adjustment of the details of 
their constitutions upon theoretical speculations. But surely it 
is passing strange that an) man, who thinks at all, can view this 
salutary command as the grant of a power so monstrous ; or 
look at it in any other light than as a protecting mandate to 
Congress to interpose with the force and auih'>rity of the Union 
against that violence and usurpation, by which a member of it 
might otherwise be oppressed by profligate and powerful indivi- 
duals, or ambitious and unprincipled factions. 

In a word, the resort to this portion of the constitution for an 
argument in favour of the proposed restriction, is one of those 
extravatancies (I hope I shall not offend by this expression) 
which may excite our admiration, but cannot call for a very 
rigorous refutation. I have deali with it accordingly, and have 
now done with it. 

We are next invited to study that clause of the constitution 
which relates to the migration or importation, before the year 
1808, of such persons as any of the States then existing should 
think proper to admit. It runs thus : " The migration or im- 
" portation o s h persons as any of the States now existing 
« shall think proper to admit, shall not be prohibited by the 



[ 608 ] 

" Congress prior to the year one thousand eight hundred and 
<' eight, but a lax or duty may be imposed on such importation 
" not exceeding ten doHars for each person." 

It is said that this clause empowers Congress, after the year 
1808, to prohibit the passage of slaves from State to State, and 
the word " migration" is relied upon for that purpose. 

I will not say that the proof of the existence of a power by a 
clause which, as far it goes, denies it, is always inadmissible ; but 
I will say that it is always feeble. On this occasion, it is singu- 
lary so. The power, in an affirmative shape, cannot be found 
in the constitution ; or if it can, it is equivocal and unsatisfactory. 
How do the gentlemen supply this deficiency ? by the aid of a 
negative' provision m an article of the constitution in which many 
restrictions are inserted ex ahundanti cautela, from which it is 
plainly impossible to infer that the power to which they apply 
would otiierwise have existed. Thus — " No bill of attainder 
or ex post facto law shall be passed." « ake away the restriction 
— could Congress pass a bill of attainder, the trial by jury in cri- 
minal cases being expressly secured by the constitution ? The 
inference, tht^refore, from the prohibition in question, whatever 
may be its meaning, to the power which it is supposed to re- 
strain, but which you cannot lay your finger upon with any pre- 
tensions to certainty, must be a very doubtful one. But the 
import of tht^ prohibition is also doubtful, as the gentlemen them- 
selves admit So that a doubtful power is to be made certain by 
a yet more doubtful negative upon power — or rather a doubtful 
negative, where there is no evidence of the corresponding affir- 
mative, is to make out the affirmative and to justify us in acting 
upon it, in a miitter of such high moment, that questionable pow- 
er should not dare to approach it. If the negative were perfect- 
ly clear in its import, the conclusion which has been drawn from 
it would be rash, because it might have proceeded, as some of 
the negatives in whose company it is found evidently did pro- 
ceed, from great anxiety to prevent such assumptions of autho- 
ritv as are now attempted. But when it is conceded, that the 
supposed import of this negative (as to the term migration) is 
ambiguous, and that it may have been used in a very different 
sense from that which is imputed to it, the conclusion acquires a 



[ 609 ] 

character of boldness, which, however some may admire, the 
wise and reflecting will not fail to condemn. 

In the construction of this clause, the first remark that oc- 
curs is, that the word migration is associated with tht- word 
IMPORTATION. I do not insist that noscitur a sociis is as good a 
rule in matters of interpretation as in common life — hut it is, 
nevertheless, of considerable weight when the associated words 
are not qualified by any phrases that disturb the effect of their 
fellowship ; and unless it announces, (as in this case it does not,) 
by specific phrases combined with the associated term, a different 
intention. Moreover, the ordinary unrestricted import of the 
word migration is what I have here supposed. A removal from 
district to district, within the same jurisdiction, is never denomi- 
nated a migration ot persons. 1 will concede to the honourable 
gentlemen, if they will accept the concession, that ants may be 
said to migrate when they go from one ant hill to another at no 
great distance from it. But even then they could not be said to 
migrate, if each ant-hill was their home in virtue of some federal 
compact with insects like themselves. But, however this may 
be, it should seem to be certain that human beings do not mi- 
grate, in the sense of a constitution, simply because they trans- 
plant themselves, from one place, to which that constitution ex- 
tends, to another which it equally covers. 

If this word migration applied to freemen, and not to slaves, 
it would be clear that removal from State to State would not be 
comprehended within it. Why then, if you choose to apply it 
to slaves, does it take another meaning as to the place from 
whence they are to come ? 

Sir, if we once depart from the usual acceptation of this term, 
fortified as it is by its union with another in which there is nothing 
in this respect equivocal, will gentlemen please to intimate the 
point at which we are to stop ? Migration means, as they con- 
tend, a removal from State to State, within the pale of the com- 
mon government. Why not a removal also from county to 
county within a particular State — from plantation to plantation 
— from farm to farm — from hovel to hovel ? Why not any exer- 
tion of the power of locomotion ? I protest I do not see, if this 
arbitrary limitation of the natural sense of the term migration 



[ 610 ] 

be warrantable, that a person to whom it applies may not be 
coinijell^d to remain immoveable all the days of his life (which 
could not w»^ll be many) in the very spot, literally speaking, in 
which it was his good or his bad fortune to be born. 

Whatever may be the latitude in which the word " persons" 
is capabK' of being received, it is not di-ni- d that the word " im- 
portation ' indicates a bringing in from a jurisdiction foreign to 
the United States. The two termini of the im-jort'ition, here 
spoken of, are a foreign country and the American Union — the 
first the terminus a qim^ the second the terminus ad quern The 
word migration stands in simple connexion with it, and of course 
is left to the full influence of that connexion The natural con- 
clusion is, that the same termini belong to each, or in other words, 
that if the importation must be abroad, so also must be the mi' 
grafion — no other termini being assigned to the one which are 
not manifestly characteristic of the other. This conclusion is so 
obvious, that to repel it, the word migration requires, as an ap- 
pendage, exj.lanatory phraseology, givmg to it a different begin- 
ning from that of importation. To justify the conclusion that 
it was intended to mean a removal trctra State to State, each with- 
in the sphere of the constitution in which it is used, the addition 
of the words from one to another State in this Union, were indis- 
pensible. By the omission of these words, the word " migra- 
tion" is compelled to take every sense of which it is fairly sus- 
ceptible from its immediate neighbour " importation." In this 
view it means a aiming, as " importation" means a bringing, 
from a foreign jurisdiction into the United States. That it is 
susceptible of this meaning, nobody doubts. I go further. It 
can have no other meaning in the place in which it is found. It 
is found in the constitution of this Union — which, when it speaks 
of migration as of a general concern, must be supposed to have 
in view a migration into the domain which itself embraces as a 
general government. 

Migration, then, even if it comprehends slaves, does not mean 
the removal of them from State to State, but means the coming 
of slaves from places beyond their limits and their power. And 
if this be so, the gentlemen gain nothing for their argument by 
showing that slaves were the objects of this term* 



[ 611 ] 

An honourable gentleman from Rhode Island,* whose speech 
was distinguished for its ability, and for an admirable force of 
reasoning, as well as by the moderation and mildness of its spirit 
informed us, with less discretion ihan in general he exhibited, 
that the word '' migration" was introduced into this clause at the 
instance of some of the Southern States, who wished by its instru- 
mentality to guard against a prohibition by ('ongress of the pas- 
sage into those States of slaves from other States. He has given 
us no authority for this supposition, and it is, therefore, a gratuit- 
ous one. How improbable it is, a moment's reflection will con- 
vince him. The African slave-trade being open during th(! whole 
of the time to which the entire clause in question referred, such 
a purpose could scarcely be entertained ; but if if had been enter- 
tained, and there was believed to be a necessity for securing it, by 
a restriction upon the power of Congress to inierfere with it, is it 
possible that they who deemed it important would have contented 
themselves with a vague restraint, which was calculated to ope- 
rate in almost any other manner than that which they desired ? If 
fear and jealousy, such as the honourable gentleman has described, 
had dictated this provision, a bptter terra than that of " migra- 
tion," simple and unqualified, and joined too with the word " im- 
portation," would have bceti found to trmquillize those fears and 
satisfy that jealousy. Fear and jealousy are watchful, and are 
rarely seen to accept a security short of their object, and less rare- 
ly to shape that security, of their own accord, in such a way as to 
make it no security at all. They always seek an explicit guaranty ; 
and that this is not such a guaranty this debate has proved, if it 
has proved nothing else. 

Sir, I shall not be understood by what I have said to admit 
that the word migration refers to slaves. I have contended only 
thrtt if it does refer to slaves it is in this clause synonimous with 
importation; and that it cannot mean the mere passage of 
slaves, with or without their masters, from one State in the 
Union to another. 

But I now deny that it refers to slaves at all. I am not for 
any man's opinions or his histories upon this subject. I am not 



Mr. Burriil. 



[ 612 ] 

accustomed jM/'are in verba maffistri. I shall take the clause as 
I find it, and do my best to interpret it." 



[After going through with that part of his argument relating 
to this clause of the constituiion, which I have not been able to 
restore from the imperfect notes in my possession, Mr. Pinkney, 
concluded his speech by expressing a hope that (what he 
deemed) the perilous principles urged by those in favour of the 
restriction upon the new State would be disavowed or explained, 
or that at all events the application of them to the subject under 
discussion would not be pressed, but that it might be disposed of 
in a manner satisfactory to all by a prospective prohibition of 
slavery in the territory to the north and west of Missouri.] 



N°- VIII. 

OPINION IN THE CASE OF COHENS AGAINST THE 
STATE OF VIRGINIA. 

By the constitution of the United States, power is given to 
Congress " to exercise exclusive legislation, in all cases whatso- 
" ever, over such District (not exceeding ten miles square) as 
" may, by cession of particular States, and the acceptance of 
" Congress, become the seat of the government of the United 
« States." 

This clause was no doubt inserted in the constitution from the 
indispensible necessity which was felt to exist, that the national 
government should have entire authority in the place where it 
was to be located. It was a government established for national 
purposes, and it was fit and proper that the national legislature, 
and the members of it, should be entirely free from, and unmo- 
lested by, the authority or power of any State legislature. 

By an act of Congress power is given to the corporation of the 
City of Washington, to authorize the drawing of lotteries for ef- 
fecting any important improvement in the city, which the ordi- 
nary funds or revenue thereof will not accomplish : Provided, 
that the amount to be raised in each year shall not exceed the 



[ 613 ] 

sum of ten thousand dollars ; and provided, also, that the object 
for which the money is intended to be raised, shall be first sub- 
mitted to the President of the United States, and shall be ap- 
proved by him. 

Under the power given by this act of Congress, the corpora- 
tion of the city of Washington have established lotteries for the 
purpose of effecting .important improvements in the said city, 
which the ordinary funds or revenue thereof will not accomplish ; 
and the object for which the money intended to be raised by the 
said lotteries is to be applied, has been submitted to the Presi- 
dent of the United States, and has been approved by him. 

Have the legislatures of the individual States power, by any 
laws whicli they can pass, to prohibit the sale of the tickets in 
the lotteries thus established in the city of Washingt«)n ? 

We thinlc the State legislatures have no such power. 

This is a lottery authorized by Congress, for the purpose of 
making important improvements in the city, which may be 
styled the National City, in the improvement of which the na- 
tion is concerned. It is therefore a national lottery, authorized 
by the national legislature ; and it would be monstrous if any 
State legislature could impede the execution of a law made for 
national purposes, relative to a District over which the national 
legislature have the exclusive right of legislation. Congress have 
the right to judge of the proper means of improving the seat of 
government ; they have the power of raising those means, by any 
law not forbidden by the constitution, and no State legislature 
can, consistently either with the letter or spirit of the constitution, 
interfere with the exercise of this power. It may be conceded, 
that the power of legislation, over the district, vested in Congress 
by the 17th clause of the 8th section and first article of the con- 
stitution, is local and territorial with reference to the sphere of 
its direct a-id immediate action, but tiiis concession leaves the 
matter of the present inquiry as much at large as it was befdre : 
Since it is still certain that the power itself is the power of the 
nation, that the whole Union are at once the grantors and (by 
their representatives) the depositories of it ; that the District upon 
which, or witli a view to which, it is exerted, is entirely a na- 
tional District, and that the sovereignty of Congress over it, was 
coramunicated for national ends. 

78 



[ 614 ] 

But for the above-mentioned clause in the constitution, the 
territory included within the District of Columbia would be liable 
to no other legislation by Congress than that which it may exer- 
cise over the States. With views of general policy, that clause 
invests Congress with complete dominion over the District, in 
addition to, or involving and blended with, the other enumerated 
or general powers of Congress, which it was intended to assist 
and fortify. 

As this dominion flows from the same source with every other 
power possessed by the government of the Union ; as it is ex- 
erted by the same Congress ; as it was created for the common 
good and for universal purposes, it is impossible that it should 
not be of equal obligation, throughout the Union, in its effects 
and consequences, with any power whatever known to the con- 
stitution. 

The government of the United Slates is a government of enu- 
merated powers, all of which are upon the same level. The 
power to raise and support armies (with all its dependent powers) 
may be of higher dignity than the power to legislate over the 
seat of the general government, but it is not of greater force, or 
more binding upon the States or the people. The power to raise 
and support armies may, and almost always will, operate more 
expansively, but legislation over and for the District of Colum- 
bia may, in the progress of its consequences, reach as far as 
legislation for military objects, and when it does so, will be of 
equivalent efficacy. 

If Congress had deemed it expedient it might have established 
this lottery directly, instead of authorizing it by a substitute, and 
might have afterwards applied the avails (so as to bind the 
States) to this improvement of the District. Had it done so, 
who can doubt that the tickets might have been sold in each of 
the United States ? And yet where is the difl'erence in the sub- 
tance of the thing, and in comiium sense, between the two cases? 

Where can be the difference whether Congress exercise their 
power directly themselves, or authorize others to exercise it for 
them ? It is still, in either case, their power and authority which 
is acting. 

It will be admitted by every body, that it is in the nature of a 
lottery that the tickets must be sold, and that they must be (as 



[615 ] 

they always are) transferable from hand to hand by sale ; and it 
results, from the inttrest every citizen of the United States has in 
that which is well established or created for general purposes, 
under the authority of Congress, and within the scope of the 
constitution, that he is entitled to avail himself of what is so es- 
tablished or created. But surely a State law which forbids a 
citizen to sell or to buy a ticket in a lottery, (well established un- 
der the authority of the Union, within the scope of the consti- 
tution, and for national purposes,) trespasses upon this right of 
the citizen, so far as it goes, interferes with the general purposes 
for which the lottery is established, and changes the qualities of 
the ticket by impairing that saleable and transferable faculty to 
which it owes its value, and without which the lottery itself may 
be wholly defeated, and must be greatly injured and delayed. 

It would indeed be a strange anomaly, if what Congress had 
created, or authorized to be created, in a valid manner, and 
which entirely derives its capacity of answering the general pur- 
poses for which it was so created, from its faculty of being sold 
and transferred, could be considered and treated by a State as 
the subject of a criminal traffic ; or, in other words, if a citizen 
could be punished by a State for selling or buying that which 
Congress had, for the purpose of being bought and sold, sent, or 
caused to be sent, into the market of the Union, conformably to, 
and under the sanction of the constitution, and for a national 
object. 

If a lottery ticket has a lawful origin under the constitution of 
the Union, it is a lawful lottery ticket wherever the power of the 
Union is acknowledged. The power of the Union, constitutionally 
exerted, knows no locality within the boundaries of the Union, 
and can encounter there no geographical impediments. Its march 
is through the Union, or it is nothing but a name. The States 
have no existence relatively to the effect of the powers delegated 
to Congress, save only where their assent or instrumentality is 
required or permitted by the conslitution itself. In every other 
case the effect of constitutional congressional legislation is com- 
mensurate with united America; and Stale legislation in oppo- 
sition to it is but a shadow. 

Nor is there any dnneer to be apprehended from allowing to 
Gongressional legislation, with regard to the District of Colum- 




[ 616 ] 

bia, its fullest effect. Congress is responsible to the States and 
to the people for that legislation. It is in truth the legislation of 
the States, and the people, over a District, placed under their 
control for their own benefit, not for that of the District, except 
as the prosperity of the District is involved, and is necessary to 
the general advantage. 

The States, or the people, can only resist the natural effect of 
such legislation by resisting the exercise of their own sovereign- 
ty, created upon high inducements of constiiutional policy. 

A case of this sort bears no resemblance to that of one State 
repelling, within its limits, by penal sanctions, the effect of the 
laws of any other State, upon considerations of local expedience, 
or otherwise. What on such occasions one State may properly 
and regularly do with regard to the laws of another State, it is 
not fit to discuss in this place ; but whatever it may do on such 
occasions, there is no analogy between those and the present. A 
State that repels the effects of the laws of another State within its 
territory, is no party to those laws It has no direct interest in 
them. It did not assist in making them immediately, or deriva- 
tively, or constructively. It cannot assist in repealing or modi- 
fying them. But here the law is its own law, as being a member 
of the Union, although irrevocable by it, without the concurrence 
of others. The effe«-t is for its own advantage in the eye of the 
constitution. It can contribute to revoke ihe law by its repre- 
sentatives in Congress, and it is bound by the constitutional 
grant of power, in virtue of which it has been enacted, since it 
participated in that grant, as in every other grant of power to 
thr government of the Union. 

Upon the whole, we are of opinion that the legislature of no 
individual State in the Union can, consiitutioriaily, prohibit the 
sale of tickets in the lotteries established in the city of Washing- 
ton, under the authority of Congress. 

WM. PINKNEY, 

DAVID B. OGDEN, 

THOMAS ADDIS EMMET, 

JOHN WELLS, 

W. JONES, 

JOS. OGDEJN HOFFMAN. 



